State ex rel. Tucker v. Sanford

Lake, Ch. J. This is an original application for a peremptory writ of mandamus to compel the defendant as constable to call appraisers, and hare the relator’s exemption of personal property in lieu of a homestead ascertained, under sections 521, 522, 523 of the code. This is desired with a view of thereby releasing certain of the property from an order of attachment under which the officer seized and still holds it. From the view we take ol the case but a single question need be considered, and that is simply whether these sections apply where property is so held. They are as follows: [426] Sec. 521. All heads of families who have neither lands, town lots, or houses subject to exemption as a homestead under the laws of this state, shall have exempt from forced sale on execution the sum of five hundred dollars in personal property. Sec. 522. Any person-desiring to avail himself of the exemption, as provided in the preceding section, must file an inventory, under oath, in -the court where the judgment is obtained, or with the officer holding the execution, of the whole of the personal property ownedby him or them, at any time before the sale of the property; and it shall be the duty of the officer to whom the execution is directed, to call to his assistance three disinterested freeholders of the county where the property may be, who, after being duly sworn by said officer, shall appraise said property at its cash value. Sec. 528. Upon such inventory and appraisal being completed, the defendant in execution, or his authorized agent, may select from such inventory an amount of such property, not exceeding, according to such appraisal, the amount or value herein exempted, but if neither such defendant, nor his agent, shall appear and make such selection, the officer shall make the same for him. Now can it reasonably be.-said of this language that it is susceptible of a construction which will make the steps provided for in the last two sections applicable where property of a debtor is held under an order of attachment ? That property which is exempt from forced sale on execution is not attachable, is unquestionably true; but how is its exempt character to be established ? Could it have been the design of the legislature, where a debtor’s property is attached, and the court, in the language of the statute, has thereby “ acquired jurisdiction” over it, that upon a mere ex parte affidavit and valuation, his right to an exemption out of it and its extent may be definitely settled? We think not. The language of the statute [427] evinces no such intention, and besides, such a rule would be entirely unreasonable and hostile to all of the analogies of the law. To us the idea very clearly expressed by this language is, that the proceeding sought by the relator was intended to be given only where property of a defendant is seized, after judgment, under an ordinary execution. The first, step to be taken is the filing' of an inventory by the-debtor of all his personal property “in the court where-the judgment is obtained, or with the officer holding the-execution, ” But in the case of the relator this could not have been done, for the very good reason that no judgment had yet been rendered, nor execution issued. The action had just been commenced, the property of the-debtor seized and brought within the control, not of a. mere ministerial officer, but of a court possessing jurisdiction to judge all rights respecting it; and surely the-law is not so unreasonable as to require that same property to be released through a mere cx parte proceeding; before a constable. When a constable under an order of attachment seizes-property of the defendant, he is required to “ hold it subject to the order of the justice.” Sec, 929, code of civil procedure. If, because it is exempt from forced sale in payment of debts, its release be desired, it may be had through an order of the justice to that, effect. We are of opinion that the writ should be denied. Writ Denied.