The Federal Agency Investment Company v. Baker

• Decision Date: 08 January 1927
• Docket Number: 27,071
• Citation: 252 P. 262,122 Kan. 460
• Parties: THE FEDERAL AGENCY INVESTMENT COMPANY, Appellant, v. JOHN BAKER, Appellee
• Court: Kansas Supreme Court

252 P. 262

122 Kan. 460

THE FEDERAL AGENCY INVESTMENT COMPANY, Appellant, v. JOHN BAKER, Appellee

No. 27,071

Supreme Court of Kansas

January 8, 1927

Decided January, 1927.

Appeal from Wyandotte district court, division No. 4; CHARLES A MILLER, judge.

Judgment affirmed and reversed.

SYLLABUS

SYLLABUS BY THE COURT.

1. APPEAL AND ERROR--Conclusiveness of Findings Based on Affidavits. The supreme court is not necessarily bound by findings of fact made by a trial court when based wholly on affidavits.

2. EVIDENCE--Affidavits. Affidavits to be used as evidence must state facts, not conclusions.

3. EXEMPTIONS--Automobile Truck Used in Business. An automobile truck used in his business by a fuel dealer is exempt from sale under execution.

Thomas E. Joyce, of Kansas City, for the appellant.

Roy R. Hubbard, of Kansas City, for the appellee.

OPINION

MARSHALL, J.:

The plaintiff caused an execution to be levied on a Ford motor truck and on a Ford four-door sedan automobile both owned by the defendant, the head of a family. He was engaged in the fuel and transfer business. In an application to have the levy quashed he alleged that the truck and sedan were exempt as tools used by him in his business. The levy was quashed, and the plaintiff appeals.

1. The evidence was wholly in writing. It consisted of the verified application of the defendant to discharge the levy and an affidavit of Thomas E. Joyce, the attorney for the plaintiff, to the effect that he accompanied the undersheriff when the levy was made; that the undersheriff levied on the Ford truck; that it was loaded with wood; that the wood was delivered; that the truck was then being driven by an employee of the defendant; and that to the best of the affiant's knowledge and belief the defendant did not operate the truck in person. Under these circumstances, this court can review the evidence and reach a conclusion thereon contrary to the one reached by the trial court. (Moore v. Pye, 10 Kan. 246; Robinson v. Melvin, 14 Kan. 484; Durham v. Carbon Coal & Min. Co., 22 Kan. 232; Woodward Faxon & Co. v. Clark, 30 Kan. 78; Cheney v. Hovey, 56 Kan. 637, 642, 44 P. 605; Bank v. McIntosh, 72 Kan. 603, 610, 84 P. 535; Belknap v. Sleeth, 77 Kan. 164, 93 P. 580; Bartels v. School District, 89 Kan. 233, 237, 131 P. 579; Mathewson v. Campbell, 91 Kan. 625, 627, 138 P. 637; Broquet v. Investment Co., 105 Kan. 632, 633, 185 P. 726; Young v. Schwint, 108 Kan. 425, 428, 195 P. 614; Agricultural Ins. Co. v. AEtna Ins. Co., 119 Kan. 452, 459, 239 P. 974.)

2. The application of the defendant, used as an affidavit, stated that he used the truck and sedan in his business. That was a conclusion of the affiant. It was not evidence. The affidavit should have stated the facts as to how the truck and sedan were used. (Olmstead v. Koester, 14 Kan. 463; Center Township v. Hunt, 16 Kan. 430; Howard v. Eddy, 56 Kan. 498, 499, 43 P. 1133; State v. Telephone Co., 77 Kan. 774, 95 P. 391; Wheat Growers Association v. Schulte, 113 Kan. 672, 685, 216 P. 311.) The affidavit of the defendant was insufficient to show for what purpose the truck and sedan were used by him. The affidavit of the attorney for the plaintiff did show that the truck was used by the defendant in his business. There was no other evidence to show how the sedan was used.

3. Was the truck exempt? Section 60-3504 of the Revised Statutes in part reads:

"Every person residing in this state, and being the head of a family, shall have exempt from seizure and sale upon any attachment, execution or other process issued from any court in this state, the following articles of personal property: . . .

"The necessary tools and implements of any mechanic, miner or other person, used and kept in stock for the purpose of carrying on his trade or business, and in addition thereto, stock in trade not exceeding four hundred dollars in value."

Under that statute, the following articles have been held exempt:

"A lamp and other articles kept by a watchmaker and jeweler" (Bequillard v. Bartlett, 19 Kan 382); "cheese vats, cheese presses, curd knives and the like" of one who makes cheese (Fish v. Street, 27 Kan. 270); "one iron safe, and one set of abstracts, and one cabinet and table" of "an insurance agent and abstracter of titles" (Davidson v. Sechrist, 28 Kan. 324); tinners tools (Burton, Moses & Bro. v. Baum, 32 Kan. 641, 5 P. 3; Miller v. Weeks, 46 Kan. 307, 26 P. 694); "a printing press and printing material used in printing and publishing a weekly newspaper" (Bliss v. Vedder, 34 Kan. 57, 7 P. 599); "the horse, harness and buggy of an insurance agent" (Wilhite v. Williams, 41 Kan. 288, 21 P. 256); "the bus of a hotel keeper" (White v. Gemeny, 47 Kan. 741, 28 P. 1011); "the threshing-separator, traction...