Yockey v. Bucher

OPINION OF COURT. The following is taken, verbatim, from the opinion. PER CURIAM. In this action, the wife is a party plaintiff with the husband, and it is claimed that she is not precluded by the judgments referred to, and that after said judgments had been rendered and before sale, she made an independent demand of the sheriff to have said property set off as exempt and not sold under the execution and that the sheriff disregarded her demand and sold the property; and it is claimed that she may maintain this action •against the sheriff even though the husband is prevented from doing so by the adjudications mentioned. G. C. Sec. 11730 provides that “the husband, or in case of his failure or refusal, the wife, may make the demand therefor.” “The right to demand it is primarily that of the husband alone, the wife having no right to make the demand unless the husband fail or refuse to make it.” Aultman, Miller & Co. v. Wilson, 55 OS. 145. In Dean v. McMullen, 109 OS. 309, it is held that an agreement, in a lease, to waive such exemption is void as against public policy, and that the husband’s waiver of such exemption, contained in a lease, does not deprive the wife of the right to claim such exemption. We hold in this case that where the husband demands such exemption and prosecutes an action to obtain the same, and there is no question of waiver involved, the wife has no right to make a subsequent demand, for the reason that the statute gives her that right only when the husband fails or refuses to make such demand. The wife’s subsequent demand therefore was of no force or effect. (Washburn, PJ. and Funk and Pardee, J., concur.)