Lansden v. Hampton ( 1890 )

Wall, J.

The question presented by the pleadings in this case is, whether a defendant in execution, desirous of availing himself of the statutory exemption as to personal property, is required to have the property described in his schedule present and within view of the officer before the latter must appoint appraisers. The statute provides that the execution debtor, if lie seeks the benefit of the exemption, shall, within ten days after notice of the execution, make a schedule of all his personal property and deliver the same to the officer; “and thereupon the officer having the execution * , * * shall summon three householders, who, after being duly sworn to fairly and impartially appraise the property of the debtor, shall fix a fair valuation upon each article contained in the schedule, and the debtor shall then select from such schedule the articíes he or she may desire to retain, the aggregate value of which shall not exceed the amount exempted to which he or she may be entitled, and deliver the remainder to the officer having the writ.” The directions herein contained are plain and explicit. The steps to be taken are, first, the officer must notify the defendant of the execution; second, the defendant must, within ten days, present a proper schedule to the officer; third, the officer must then appoint the appraisers; fourth, the appraisers, having taken the necessary oath, must appraise the property—it being implied, of course, that the property is produced before them by the defendant; fifth, the defendant must then make his selection, and deliver the remainder to the officer having the writ.

The mere fact that when the schedule is presented the property, or a part of it, is not within the county, will not excuse the officer from appointing the appraisers.

He should, upon receipt of the schedule, proceed, as the statute requires, to appoint appraisers, before whom the property must be produced by the defendant. There is nothing in Menzie v. Kelley, 8 Ill. App. 259, cited by appellant, to conflict with this construction; nor in Smith v. Doud, 29 Ill. App. 290. Indeed, the argument to be drawn from those cases, so far as applicable, is in support of the view here taken.

We are of opinion the trial court ruled correctly and that its judgment should be affirmed.

Judgment affirmed.