Gardner v. King

Opinion by Clogston, C.: The only question for consideration is, whether the court erred in sustaining the demurrer to the plaintiff’s evidence. The record shows that there was but very little evidence given at the trial, and what little there was admitted must, when demurred to, be regarded in the [673] most favorable light, and all reasonable presumptions to be drawn therefrom are to be resolved in favor of the plaintiff; and before a demurrer thereto can be successfully sustained, the court must be able to say that the plaintiff has entirely failed to prove his case. (Brown, Adm’r, v. A. T. & S. F. Rld. Co., 31 Kas. 1.) The plaintiff showed by his testimony that he was a resident of the state, and the head of a family; that the two heifers in controversy belonged to him; that they were levied upon by a constable on execution in favor of the defendant; that before the sale of the property plaintiff notified the defendant not to buy them, and that he claimed them as exempt property; also, that the property was advertised and afterward sold, and the defendant became the purchaser at said sale. This evidence was, we think, sufficient when so attacked to prove the plaintiff’s cause. If the plaintiff had waived his right to select the property, or had done anything else that would reasonably prevent him from claiming the property as exempt, it would have been a proper defense to his claim. It was not necessary for the plaintiff, in the first instance, to show that he had not waived his right to claim the property under the exemption. The defendant however insists that the testimony of the plaintiff showed that he had no other cattle at the time of the trial, but that he did not show what other cows, if any, he had at the time the execution was levied upon the property in controversy. This was not necessary. If the cows in controversy were the only ones he owned at the time of the levy, then they were exempt; if he had other cattle, then he had the right to select which he would claim as exempt; and this right to select might be exercised by the plaintiff at any time before the sale. (Rice v. Nolan, 33 Kas. 28.) The exemption law was made for the benefit of a debtor and his family, and its provisions must be liberally construed in his favor. Where he made the selection before the sale and informed the defendant of that fact, and that he claimed the property as exempt, if after that the defendant retained them, he did so wrongfully, the plaintiff being entitled to their immediate possession. [674] Defendant claims that the court erred in overruling his motion to quash the affidavit, the foundation of the action; and also in overruling his objection to the introduction of any testimony thereunder. We suggest to counsel that before he can be heard to urge errors in his own behalf, he must have preserved the rulings of the court in a transcript or case-made. The defendant has filed no cross-petition in this case, and therefore none of the errors, even if they existed as claimed by him, can avail or be considered by this court. The demurrer was erroneously sustained. We therefore recommend that the judgment of the court below be reversed. By the Court: It is so ordered. All the Justices concurring.