Giegolt v. Joor

Chalmers, J., delivered the opinion of the court. Plaintiff sued the defendant, sheriff, for damages for having sold his two exempt mules under execution. The legal question decided below and argued here is this : Where a defendent in execution is the owner of more personal property than the law exempts, and the officer, not knowing which portion the debtor proposes to select, levies upon the whole; must the debtor point out the particular portion he desires to preserve, or is it sufficient that he notifies the officer generally that he claims his exemptions, and can he thereafter hold him liable if he sells the whole ? [819] The court below held that it was the duty of the exemp-tionist, who had an opportunity to do so, to indicate the particular portion of the property which he desired to retain, and that having this opportunity, and failing to use it, he could not sue the officer for having sold that which, by reason of not having been selected, had not become exempt. This interésting question we are precluded from considering by reason of a defect in the record, upon which counsel for appellee insists. It nowhere appears that plaintiff was an exemptionist, or even a resident of the State, except by his own deposition, and this is embodied in the record proper, and not in the bill of exceptions. There is no allusion to it in the bill of exceptions, except in connection with a motion to suppress the answers to certain interrogatories, and in reciting this matter the draftsman says, in parenthesis (see deposition). It has been many times decided, in this court that depositions in suits at law cannot be noticed unless contained in the bill of exceptions, and though they are found in the record, and referred to in the bill of exceptions, the rule is the same. McRaner v. McGuire, 9 Smed. & M. 34; Barry v. Hule, 1 How. 315 ; Preston’s Case, 25 Miss. 383; Carmichael v. Brewster, 4 How. 431; Pickett v. Doe, 5 Smed. & M. 470; Waddington v. Gury, 7 Smed. & M. 522. Affirmed.