Bancord v. Parker

The opinion of the court was delivered, May 19th 1870, by Agnew, J. This case is ruled by Strouse’s Ex’rs. v. Becker, 8 Wright 206, Zimmerman v. Briner, 14 Id. 535, and Bair v. Stein-man, 2 P. F. Smith 423, on the ground that the election to retain the debt attached came too late after the jury was sworn upon the issue of nulla hona entered forty days before the trial. Those were cases of attachment in execution, and therefore directly in point. To them we may add Hammer v. Freese, 7 Harris 255, and Rogers v. Waterman, 1 Casey 182, on the necessity of diligence on part of the defendant in making his claim for the exemption. But it is said the defendant had no one to whom he could give notice, and therefore the ease does not fall within the spirit of these decisions. This is a mistake. An attachment execution does not resemble a fi. fa. where the sheriff is required to make sale of the property, and notice to him is necessary to prevent a sale, and cause a [338] valuation to be made by appraisers under tbe Act of 1849. The sheriff in an attachment execution has nothing to do with levying the debt, he merely serves the process and warns the garnishee not to pay over. Doubtless the 'defendant may notify him of the claim for exemption at the time of service, of which notice the officer would be bound to make a return; but if he be not served, as in this case, there is nothing to prevent him from filing his claim for the exemption when he appears. He appeared here on the 20th September 1869 and pleaded nulla bona. Now this plea was a direct denial of the existence of the debt, and was calculated to mislead the plaintiff, and compel her to prepare for a trial on that plea. But a claim for exemption filed with the plea would have shown to the plaintiff a reason for saving the expense of preparation. It is not the costs only which she might have saved, but the trouble and the expense of counsel employed to try the cause. The death of the plaintiff was no excuse. If the defendant could appear and plead, he could also file his claim with his plea; besides, inquiry would have soon enabled him to find out the person representing the plaintiff’s estate. It was negligence, therefore, to wait until the 30th of October, after the cause had been notified for trial and the jury sworn. Judgment affirmed.