Smith v. Eckles & Abercrombie

JACKSON, Chief Justice. 1. The bill of exceptions in this case has an acknowledgment of service upon it signed in these words, “Eckles & Abercrombie per John T. Eckles.” It nowhere appears either in the bill of exceptions or in the record who John T. Eckles is, whether one of the defendants in error or counsel for them, or in what character he acknowledged service for that firm. So that the bill of exceptions, not being properly served, might well be dismissed. But counsel having argued the case on the merits without noticing the point, we proceed to consider the real point on the merits. 2. That point is that the horse levied on was exempt, and the wife of defendant in execution could claim it— though it was not exempt actually, because the defendant had no horse at all when he had his exemption of personalty set apart. The idea of plaintiff in error is that though he had no horse to exempt at the time he applied for his exemption and made out his schedule, yet as he put in the schedule the words “ one horse,” those words operated to exempt this horse bought a year or two after-wards. We think that he should have had the horse exempted after it became his property. It does not appear that he was bought from the proceeds of any property sold which had belonged to him at the time he filed his application, or that was contained in his schedule ; and in no view of the law does the record show that the horse was not subject to be sold to pay the plaintiff’s debt. The judge, therefore, was right in declining to grant the writ of certiorari, which was applied for from the verdict of a jury in the justice court which condemned the horse claimed as subject to plaintiff’s execution. ’ Judgment affirmed.