Parker v. Independence Produce Co. , 2 Indian Terr. 561 ( 1899 )

Thomas, J.

(Dissenting.) I cannot concur in the opinion of the court in this case. The opinion of Chief Justice Springer at nisi prius fully states the case and the issues, and is adopted by me as my view of the law:

“The question for the court to determine in this case is as to whether, under the facts conceded, the defendant in execution, after having made his schedule of the property in question, and the property claimed by him as exempt from execution set apart to him, was required, when the alias execution issued against him on the same judgment, to again make out his schedule, claiming the same property as exempt, and have it set apart to him again, to entitle him to its exemption from the second execution. The statute (Mansf. Dig. § 3006; Ind. T. Ann. St. 1899, § 2121) provides as follows: ‘Whenever any resident of this state shall, upon the issue against him for the collection of any debt by contract of any execution or other process, of any attachment, , except specific attachment, against his property, desire to claim any of the exemptions provided for in article IX, of the constitution of this state, he shall prepare a schedule, verified by affidavit, of all his property, including moneys, rights, credits, and choses in action held by himself or others for him, and specifying the particular property which he claims as exempt under the provisions of said article, and after giving five days’ notice in writing, to the opposite party, his agent or attorney, shall file the same with the justice or clerk issuing such execution or other process or attachment; and the said justice or clerk shall thereupon issue a supersedeas staying any sale or further proceeding under such execution, or process, or attachment, against the property in such schedule described and claimed as exempted, and by returning the property to the defendant. ’ It will be seen from the statute that the supersedeas stays any sale or further proceeding under such execution against the property in such schedule claimed and described as exempt, and the property is returned to the defendant. Counsel for the defendant in the case at bar contend that while the property in question was exempt under the same execution, yet that it is not exempt unless claimed as such when levied upon by an alias execution. The supreme court of Arkansas, in the case of Weller vs Moore, 50 Ark. 253-255, 7 S. W. 130, has passed upon the subject, and counsel for the defendant hold that under the decision of the supreme court of Arkansas in that case the property levied upon by the alias execution was subject to that execution, and could only be relieved from its operation by the filing of a second schedule against the same. The facts in the case cited are not set forth in the opinion of the court, but the court reviews and approves the decision of the supreme court of Arkansas in the case of Euper vs Alkire, 37 Ark. 283, in which case that court held: ‘When a schedule of a homestead has been filed against an execution, it is not necessary to file another against an alias execution on the same judgment where there has been no change of circumstances. ’ The supreme court in the case of Weller vs Moore, states that the only reason assigned for this rule is: ‘There can be no reason for the second selection or schedule in the same case where there has been no change of circumstances. ’ But the court held in that case that the rule laid down in the case of Euper vs Alkire does not apply to personal property, stating that the law fixes and designates what shall be the homestead of a resident of the state, and that there can be no change of homestead, except by abandonment of it as a place of residence. The court then states as follows: ‘In the very nature of the case, there can be no reason for filing a second schedule against an alias execution on the same judgment, when there has been no change of circumstances. In that case the object, of the law is accomplished by the filing of one schedule against an alias execution on' the same judgment, and the office of the schedule is performed by fixing the metes and bounds of the homestead.’ The court then proceeds to draw the dictinction between executions levied upon homesteads and those levied upon personal property, as follows: ‘But in the case of personal property it is important to both parties to the execution that the defendant shall have the right and be required to make his schedule and claim his exemption upon the issuing of each exemption. He may sell or exchange the exempted property. It may die, be destroyed, depreciate or increase in value. He may acquire additional property. He may wish to exchange his property, and take other property in lieu of it. It is not to be presumed that he will always desire to retain the same property as his exemption, and it cannot be authoritatively ascertained when he does wish to change his exemption, as in the case of the homestead, unless he manifests such desire by the filing of a schedule upon the issue of each execution. If he is not required to file a schedule upon the issue of every execution, what right has he to change his exemption upon the issue of an alias execution, after he has made his selection upon the issue of the first? We hold that he is required to file a schedule in the manner prescribed by the statute, upon the issue of each execution, in order to hold his exemption of personal property.’ It will be seen from the reasoning of the court in the case of Weller vs Moore that it is based upon the idea that in the case of personal property there may be a change of circumstances, but, if there is no change of circumstances, the object of the law is accomplished by the filing of one schedule against all executions on the same judgment. The reasoning of the court as to homesteads is just as strong as it would be in reference to personal property, when there has been no change of circumstances. Where there has been no change of circumstances, ‘in the very nature of the case,’ quoting from the decision in the case of Weller vs Moore, ‘there can be no reason for filing a second schedule against an alias execution on the same judgment. ’ In the case at bar there was no change of circumstances. Less than 30 minutes elapsed from the issuing of the supersedeas on the first execution until the alias execution was issued and levied upon precisely the same property claimed as exempt. The issuance of an alias execution,- and its levy upon the same property immediately thereafter, as in the case at bar, are not only unnecessary but are vexatious, and, if such proceedings should be tolerated by the courts, the right of exemption of personal property would be entirely defeated. If an alias execution can be issued immediately, and levied upon the same property, another could immediately be issued when the same property was claimed, and thus a multiplicity of processes could be invoked, solely for the purpose of harassing and heaping costs to an unlimited extent upon the defendant in execution. Such proceeding is not only in violation of the spirit of the law, but is an outrage upon justice, and, if recognized by the courts as legal, it would make a mockery of judicial processes. There was no necessity for the issuing of a second execution in this case, for the further reason that it appeared from the list of property filed by the defendant in execution that he had scheduled all his property; that it amounted to only $273.50; and that he claimed all of it as exempt, being the head of a family, and entitled to exemption of personal property to the extent of $500. This court is of the opinion the reasoning of the court in the case of Weller vs Moore, supra, does not sanction the issuance of an alias execution, and the levying of it upon the property claimed under the previous schedule as exempt, in the manner which was done in the case at bar. If reasonable time had elapsed, and if there had been a change of circumstances, such as pointed out in the reasoning of the court, the case would be different; but under the facts as they appear in this case, there could have been no change of circumstances between the issuance of the first and second executions, and in the judgment of this court the property passed to the Independence Produce Company by the sale made to it by the defenant in execution, and that the plaintiff in this case should recover.”

‘‘The exemption clause of the laws of Arkansas is a highly remedial one, and to be liberally construed.'’ Railway Co. vs Hart, 38 Ark. 112-114; also, Birdsong vs Tuttle, 52 Ark. 91-93, 12 S. W. 158.