Wakefield v. Lord

• Decision Date: 08 May 1928
• Docket Number: 1445,1446
• Citation: 38 Wyo. 301,266 P. 1066
• Parties: WAKEFIELD v. LORD [*]
• Court: Wyoming Supreme Court

266 P. 1066

38 Wyo. 301

WAKEFIELD v. LORD ^[*]

Nos. 1445, 1446

Supreme Court of Wyoming

May 8, 1928

APPEAL from District Court, Sheridan County; JAMES H. BURGESS Judge.

Separate actions by Frank W. Wakefield and by Mrs. Frank W. Wakefield against George Lord, Sheriff of Sheridan County, and another tried together and submitted on appeal together by stipulation. Judgments for defendants, and plaintiffs appeal.

Affirmed.

R. E McNally and Burton S. Hill, for appellants.

Appellant was entitled to exemptions allowed by Section 5886 C. S. to heads of families, but she only claimed exemption under Section 6035 C. S. There was no proof that the Wakefields were about to become non-residents; the intention to remove and make a new residence and actual removal, must be concurrent, Barhydt v. Cross, (Ia.) 136 N.W. 525; Otis v. Boston, 12 Cush. 44. They did not establish residence in Massachusetts nor did the evidence show an intention to do so, 19 C. J. 393-397; Walker v. Walker, (Md.) 94 A. 346; In re Mulford, (Ill.) 75 N.E. 345; Ross v. Ross, 103 Mass. 575; Lankford v. Gebhart, (Mo.) 32 S.W. 1127; People v. Moir, (Ill.) 69 N.E. 905; to effect a change of domicile, there must be a change of residence with an intention to abandon the former domicile and acquire another, DuPuy v. Wurtz, 53 N.Y. 556; Grimstad v. Lofgren, (Minn.) 17 L.R.A. (N.S.) 990, 117 N.W. 515; Re Titterington, (Ia.) 106 N.W. 761; Cover v. Hatton, (Ia.) 113 N.W. 470; Tuttle v. Wood, (Ia.) 88 N.W. 1056; State v. Scott, (Ind.) 86 N.E. 409; Penfield v. R. R. Co., 29 F. 494; Anthonly v. Wade, (Ky.) 5 A. L. R. 303. Absconding from a state in a legal sense means hiding or secret movement to avoid service of process, 6 C. J. 44; Stafford v. Mills, (N. J.) 32 A. 7; a temporary absence is not sufficient.

Roy Bedford and John F. Raper for respondents.

One about to remove or abscond from a state has no property exemption, 6035-6037 C. S.; no residence was established in Massachusetts by the Wakefields, 6028-6038 C. S.; there was proof that Wakefields were preparing to move elsewhere and make their home; they had advertised their furniture for sale. Exemptions are statutory, State v. Laies, 46 Mo. 108; exemptions are lost when a person is about to leave the state with the intention of changing his domicile. The judgment of the court below was correct and should be affirmed.

R. E. McNally and Burton S. Hill, in reply.

No man can remove or abscond from a state while he is still a resident of such state, and has no intention of becoming a resident of another; the Wakefields were not about to remove, with the intention to change their domicile. State v. Laies, 46 Mo. 108, cited by respondents, while a good case, is not applicable to the facts in the present suit.

RINER, Justice. BLUME, Ch. J., and KIMBALL, J., concur.

OPINION

RINER, Justice.

These cases are before the court upon direct appeals from judgments of the District Court of Sheridan County, Wyoming, in favor of the defendants. The actions arose out of the same state of facts, and the same transactions, were tried together, and, by stipulation, are both submitted to this court upon the same transcript. The causes have been briefed together and one opinion will suffice for both, as the controlling question in each case is the same.

An examination of the record shows that on February 26, 1926, Harry Hughes and F. J. Hamstreet obtained a judgment against Frank W. Wakefield and Mrs. Frank W. Wakefield, plaintiffs below and appellants here, before J. F. Hoop, a Justice of the Peace of Sheridan County, for the sum of $ 84.58 and $ 5 costs. On this judgment an execution was issued and placed in the hands of the sheriff of that county, commanding him to make the amount of the judgment aforesaid from the goods and chattels of the Wakefields not exempt by law from being seized on execution. On the 27th day of February, 1926, the sheriff levied upon certain personal property, consisting largely of household goods claimed to belong to Mrs. Frank W. Wakefield and a box of tools claimed to belong to Frank W. Wakefield. The property was appraised at $ 482. On March 6th, following, the property was advertised for sale by the sheriff, the notice of sale stating that it would be held on the 18th day of that month. On the 6th day of March, also, the sheriff was served with a printed notice of exemption, wherein Frank W. Wakefield and Mrs. Frank W. Wakefield claimed all of the property thus levied upon as exempt to them under the provisions of Sections 5886, 6035 and 6037, Wyoming Compiled Statutes, 1920. The sheriff disregarded the claim of exemption and, on the date fixed for the sale by the notice, sold the property to one J. W. Belt, who is mentioned in the return of sale as the "agent" for the Wakefields. The property was sold for $ 110, but the sheriff in his return states that he collected from Belt simply the amount of the judgment against the defendants and costs.

Thereafter and on June 17th, 1926, Frank W. Wakefield and Mrs. Frank W. Wakefield instituted these actions in the District Court against the sheriff and the surety on his official bond, to recover from the latter, as damages, the value of the property sold at the sheriff's sale already mentioned, the gist of the actions being that the sheriff disregarded the Wakefields' claims of exemption concerning the goods sold. The actions were, as we have said, tried as one, and on the 29th day of December, 1926, the District Court rendered separate judgments therein and found, generally, in favor of the defendants and against the plaintiffs. In these judgments the court also found specifically that the plaintiffs were about to become non-residents of the State of Wyoming, and consequently were not entitled to the benefit of any exemption as claimed; that the sheriff of Sheridan County rightfully and lawfully levied upon plaintiffs' property and sold the same. In the judgment in the Frank W. Wakefield case, it was also specially found that Wakefield was in fact residing outside of the State of Wyoming, and in both cases it was adjudged that plaintiffs had suffered no damages as a result of the sale of their property.

The claim of exemption on behalf of the Wakefields was made under the sections of the Wyoming Compiled Statutes already mentioned. Section 5886 provides, among other things, that when a married woman sues or is sued alone "she shall be entitled to the benefits of all exemptions to heads of families." Section 6037 provides for the exemption from levy or sale upon execution of the tools and certain other property of any mechanic, miner or other person, used or kept for the purpose of carrying on his trade or business, not exceeding in value $ 300, and provides "that the person or persons claiming such exemptions shall be bona fide residents of this state." Certain other provisions as to exemption are also contained in the statute, but are not material...