Wertz v. Hale

• Decision Date: 18 February 1930
• Docket Number: No. 40082.,40082.
• Citation: 229 N.W. 215
• Parties: WERTZ v. HALE.
• Court: Iowa Supreme Court

229 N.W. 215

WERTZ

v.HALE.

No. 40082.^a1

Supreme Court of Iowa.

Feb. 18, 1930.

Appeal from District Court, Monona County; Miles W. Newby, Judge.

Action by the judgment debtor against the sheriff upon an indemnifying bond to recover the value of a Ford automobile claimed to be exempt, which was sold on execution. Trial to the court, and judgment for the plaintiff. The defendant appeals. Reversed.Underhill & Miller, of Onawa, for appellant.

Prichard & Prichard, of Onawa, for appellee.

STEVENS, J.

This case was submitted below, and in this court, upon a stipulation of facts from which it is shown that, prior to December 15, 1923, E. C. Junger had obtained a judgment against appellee herein; that, on the above date, the appellant sheriff of Monona county levied an execution upon a Ford automobile as the property of appellee, and later sold the same to satisfy said judgment; that appellee was a resident of this state, a farmer, the head of a family, and the owner of a team, wagon, and harness, in addition to the automobile; that in due time appellee caused a written notice, claiming to hold the automobile as exempt from execution, to be served on appellant who, in turn, gave an indemnifying bond to protect the debtor. This action is upon the bond to recover the automobile or its value, which was fixed by the stipulation.

A single question is involved, namely: Was appellee, as a resident of this state, a farmer and the head of a family, entitled to claim the automobile, in addition to a team, wagon, and harness, as exempt from execution. The team, wagon, and harness were not levied upon, but were claimed and retained by the debtor as exempt.

If the debtor is a resident of this state and the head of a family, he may hold the following property exempt from execution:

“* * * 18. If * * * farmer * * * a team, consisting of not more than two horses or mules, or two yoke of cattle, and the wagon or other vehicle, with the proper harness or tackle, by the use of which he habitually earns his living, otherwise one horse.” Section 11760, Code 1927.

The word “vehicle,” as employed in this statute, has been interpreted to include a bicycle and also an automobile. Roberts v. Parker, 117 Iowa, 389, 90 N. W. 744, 57 L. R. A. 764, 94 Am. St. Rep. 316;Lames v. Armstrong, 162 Iowa, 327, 144 N. W. 1, 49 L. R. A. (N. S.) 691, Ann. Cas. 1916B, 511;Waterhouse v. Johnson, 194 Iowa, 343, 189 N. W. 669;Weaver v. Florke, 195 Iowa, 1085, 192 N. W. 23;Farmers' Elevator & Livestock Co. v. Satre, 196 Iowa, 1076, 195 N. W. 1011;Johanson v. Rowland, 196 Iowa, 724, 195 N. W. 358;Shepard v. Findley, 204 Iowa, 107, 214 N. W. 676.

To entitle the owner to hold an automobile as exempt from execution, it must be one that is habitually used by him with which to earn a living. The first extension of the word “vehicle” as used in the foregoing statute, so as to include other instrumentalities than wagons and buggies, was in Roberts v. Parker, 117 Iowa, 389, 90 N. W. 744, 57 L. R. A. 764, 94 Am. St. Rep. 316, in which a divided court held that a bicycle owned and used by a painter and paper hanger, habitually used to earn his living, was exempt from execution. A similar holding was applied to automobiles without dissent in Waterhouse v. Johnson, 194 Iowa, 343, 189 N. W. 669. The question, however, in this case is not whether an automobile habitually used by the debtor, who is a resident of this state and the head of a family, to earn his living, is exempt from execution, but whether such debtor may, if a farmer, in addition to a team of horses, wagon, and harness, hold as exempt an automobile used by him in conducting and operating his business on the farm.

It is contended by counsel for appellee that such was our holding in Farmers'...