Bong v. Parmentier

Cassoday, J. It is well settled that the right to an exemption of $200 stock in trade under our statute is a personal privilege which may be waived by the debtor. S. & B. Ann. Stats. sec. 2982, subd. 8; Russell v. Lennon, 39 Wis. 570; Zielke v. Morgan, 50 Wis. 566; Wicker v. Comstock, 52 Wis. 315; O’Gorman v. Fink, 57 Wis. 649. Where the debtor fails to select the articles which he claims to be exempt at the time of the levy, or within a reasonable time thereafter, he thereby waives his right to such exemption. Ibid. These cases expressly overruled Gilman v. Williams, 7 Wis. 329, m that respect, and also in so far as it held that a firm was entitled to such exemption out of the firm property in like manner as if the property was owned by a single individual. Thus, in Russell v. Lennon, 39 Wis. 570, it was expressly held that, where a levy was made by a firm creditor upon partnership property, the partners might sever their interests, and then each might claim his exemption out of his separate part, but that there could be no exemption in favor of partners jointly. In O'Gorman v. Fink, 57 Wis. 649, the court went a little further, and in effect held that the consent of the respective partners that each might have and select such exemption out of the partnership property amounted to such severance, and entitled the partner making the selection to such exemption, upon a proper claim for the same, made within a reasonable time. Subsequently, this court repeatedly held, in effect, that a clause in an assignment by a firm of partnership property, [133] reserving such property as was exempt from levy and sale under execution, but failing to designate in any way the specific property so attempted to be reserved, was inoperative and void, for the reason that the firm, as such, was entitled to no exemptions. First Nat. Bank v. Hackett, 61 Wis. 335; Goll v. Hubbell, 61 Wis. 300; McNair v. Rewey, 62 Wis. 167. In First Nat. Bank v. Baker, 68 Wis. 442, the assignment by a firm of partnership property contained such a reservation, with a schedule attached containing a claim by each partner of certain property as being exempt, but all the property was delivered to the assignee, and the assignors never in fact claimed any property as exempt; and it was held that the assignment was not invalid by reason of such reservation. Severson v. Porter, 73 Wis. 70, was similar, except that prior to the assignment the partners, by agreement, actually separated the partnership assets, and each took his share in severalty. Ch. 411, Laws of 1887 (S. & B. Ann. Stats, sec. 1694a), was enacted merely to affirm that such reservation should not invalidate the assignment. It in no way affects t'he question here presented. Here, neither the assignment nor the inventory designated any specific property as claimed by the partners, or either of them, as exempt. Under the authorities cited, it is manifest that the reservation contained in the assignment was inoperative and void for more than ten weeks after the firm had, by the assignment, vested the title to all the partnership property, absolutely and unconditionally, in the defendant as such assignee. The partners did not at any time before the assignment and while they were owners of the property sever their interest therein. For more than ten weeks after the making of the assignment neither partner made any specific selection or claim for any such exemption. This was certainly an unreasonable delay and a waiver of any right to such exemption. Besides, for [134] aught that appears in the record, the respective partners may have had individual property sufficient to satisfy any and all claims for exemptions. By the Court.— The order of the circuit court is affirmed.