Carlson v. Small

Vanderburgh, J. Replevin for a car-load of wood, claimed to be exempt as necessary fuel. 1. We think the informality in the replevin affidavit complained of was not fatal to the jurisdiction of the justice; and the district court, to' which the case was brought by appeal upon law and fact, properly overruled the motion for a dismissal of the action. The affidavit states that the property “was not taken from him [plaintiff] by any process legally and properly issued against him, or, if so taken, that it was exempt,” etc. The object of the statute (Gen. St. 1878, c. 65, § 89) seems to be to prevent the writ from issuing where the property is in custodia legis, save in the case of exempt property. The correct practice is to state the case accurately, which statement may be substantially in the statute language, either negativing the taking of the property under lawful process, or stating that process has been levied [495] thereon, and that it is exempt. But this affidavit is not void. There is no uncertainty as respects the statement that the property is exempt, whether taken under process lawfully issued or not. 2. In reference to defendant’s objection to the sufficiency of the •complaint, and particularly that it did not properly allege that the wood was exempt as necessary fuel for the debtor and his family, in conformity with the statute provisions, it was not necessary to set out particularly the facts touching plaintiff’s title and the levy and exemption in the complaint, though we do not undertake to say that this course might not properly have been pursued. It was sufficient to allege generally plaintiff’s ownership, the alleged wrongful detention, the demand, and the value. Justification under process would devolve upon the defendant in his answer, which, not constituting a •counterclaim, would require no reply, and none would, in such case, be authorized in justice court. The matter of exemption, properly in rebuttal of defendant’s justification, could therefore be given in evidence as it was, without being specially pleaded. Dennis v. Snell, 54 Barb. 411. That the evidence was tendered out of its natural order, which was not made a ground of objection, is not material. 3. We discover no error in the reception of the evidence in plaintiff’s behalf. It tended to show that he demanded the wood at the time of the levy as exempt, and that it was exempt, as necessary fuel for himself and family; and the alleged errors of the court in rejecting certain offers of evidence during the cross-examination of plaintiff, and upon the examination in chief of defendant, were cured by evidence subsequently actually given by plaintiff, or the admissions of the defendant in the course of his examination. The evidence of defendant also tended to show that he was not influenced hy the plaintiff’s alleged disclaimer of the ownership of the wood. There was a case for the jury, and we see no reason for interfering with the verdict. Order affirmed.