Zielke v. Morgan

• Decision Date: 17 December 1880
• Parties: ZIELKE v. MORGAN.
• Court: Wisconsin Supreme Court

50 Wis. 560

7 N.W. 651

ZIELKE

v.MORGAN.

Supreme Court of Wisconsin.

Filed December 17. 1880.

Appeal from circuit court, Winnebago county.

Jackson & Thompson, for appellant.

Finch & Barber, for respondent.

ORTON, J.

It is conceded that the sale of the goods taken by the respondent, on the attachment against Frederick Zielke, Jr., by him to the appellant, was fraudulent and void. But it is claimed that a part of the goods so taken, of the value of $200, was the lawful exemption of Zielke, Jr., and therefore passed by such sale to the appellant; and a part, of about the value of $37, was purchased by the appellant from other persons than Zielke, Jr., and a part, of about the value of $262, the appellant had replevied from a constable who had taken them previously on an attachment against Zielke, Jr., and had given bond for the same, and that, therefore, these several classes of goods belonged absolutely to the appellant, irrespective of such fraudulent sale.

The first question arises, as to this claim of exemption, whether the goods so claimed to be exempt were not lawfully required to be specifically claimed and selected at the time of the levy or before the sale. This is not a specific exemption, which, it has been held by this court, need not be claimed by the debtor, but which the officer takes at his risk, as in Gilman v. Williams, 7 Wis. 329, and many other cases; nor is it a case where all of the property does not exceed the exemption, and which is therefore specific.

It is an exemption of goods as stock in trade, of the value of $200, part and parcel of a stock of goods of the value of several thousand dollars, which must necessarily be selected and set apart, and rendered specific and certain, by some one, and the question is, by whom? Such an exemption has been recently held by this court to be so uncertain and undetermined as to render a chattel mortgage absolutely void for uncertainty, in which such an exemption is excepted and reserved. Fowler v. Hunt, 48 Wis. 345. Within the reason of that case it might properly be held that such an exemption is void and inoperative until made certain by selection.

In Maxwell v. Reed, 7 Wis. 582, it is virtually held that any exemption may be waived by the debtor at the time of the levy, and in Russell v. Lennon, 39 Wis. 570, it is held that the right of exemption is a personal privilege of the debtor individually, and which cannot be exercised by a partnership; and that each of the partners may sever and claim each his exemption in the partnership property. This would seem to imply that, as to an uncertain exemption like this, each partner must make definite and certain his exemption by a specific claim and selection. In Fick v. Mulholland, 48 Wis. 417, it is taken as granted that a selection of exemption must be made by the debtor himself, by treating as a material question of fact whether it had been so made. The true principle, sustained by reason, and, as we think, by the better and more numerous authorities, is that whenever the exemption is not specific and certain, and a selection is necessary, that selection devolves upon the debtor. In such a case the law has favored him with the personal privilege of a choice and election what specific articles, to be taken out of the general stock, he will claim and withhold as his exempted property of the value of $200. That being so, he would certainly not be bound by the choice and election made by the officer, either in his absence or in his presence, unless assenting to it. In such a case the law is correctly stated by Mr. Thompson, in his work on Homestead and Exemptions, § 821: “The debtor has a right to elect what property, not exceeding the statutory limit of value, he will retain. Such election must be made at the time, or within a reasonable time after notice from the officer that he has made a levy; and, in default of such election and notice to the officer, the debtor cannot recover damages for a wrongful conversion of the property.”

This statement of the law is supported by many authorities cited by the author, and many more cited by the learned counsel of the respondent, and is unquestionably correct as applied to this case, in which no selection of the exemption was ever made, either by Zielke, Sr., or Zielke, Jr. This disposes of the instruction relating to the exemption, which was substantially that the plaintiff was not now in a position to claim that any part of the goods were exempt.

The exceptions to the giving and...