Hettinger v. Wells

Barnes, J. By sub. (8) of sec. 2982, Stats., tbe tools, implements, and stock in trade of any merchant, used or kept for tbe purpose of carrying on his trade or business, ar.e [642] exempt from sale on execution to an amount not exceeding $200 in value. This exemption does not extend to cases where the stock in trade is not actually used or kept for the purpose of carrying on the business in which the party has been engaged. Kennedy v. Baker, 3 Pin. 295; Spence v. Rambusch, 99 Wis. 676, 75 N. W. 950; Prince v. Hake, 75 Wis. 638, 640, 44 N. W. 825. Some authorities hold that the right to the exemption is not lost by a mere temporary suspension of the business, provided the intention exists to return to it within a reasonable time and as soon as there is an opportunity to do so. Van Lue v. Wahrlich-Cornett Co. 12 Cal. App. 749, 108 Pac. 717; Harris v. Haynes, 30 Mich. 140. The court here finds that there was an intention to resume the business of retail liquor dealer, but also finds that after his license expired the plaintiff was offering and endeavoring to sell his stock in bulk and in fact had sold some of it. This would seem to efficiently negative the contention that these goods were used or kept for the purpose of carrying on the business of saloon-keeping. Plaintiff could not “keep his cake” and eat it at the same time. The case is ruled by Walsch v. Call, 32 Wis. 159. There is no substantial difference between the facts in that case and those established in the instant case. See, also, Cable v. Hoolihan, 98 Minn. 143, 107 N. W. 967. By the Court. — Judgment reversed, and cause remanded with directions to dismiss the complaint.