Harris Ice Cream Co. v. Hartsock , 127 Miss. 271 ( 1921 )

■Ethridge, J.,

delivered the opinion of the court.

The Harris Ice Cream Company procured a judgment against L. J. Hartsock for one hundred and sixty dollars and thirty-five cents, and execution was issued thereon and certain furniture leyied upon by the constable. The appel-lee claimed a portion of the property levied upon as exempt property under section 2147, Code of 1906, section 1822, Hemingway’s Code. He sued out a writ of replevin for the property instead of filing a claimant’s issue, or a claim of exemption under the claimant’s issue statute, and this was served by the sheriff upon the constable. After the matter got into this shape, the constable demanded an indemnifying bond, and such bond was given.' There was a judgment against the appellee in the justice court, and the case was appealed to the circuit court, and on the trial in that court the following agreement was entered into by the parties, namely:

“The judgment creditor herein having filed an indemnifying bond upon the request of the defendant and the said bond having been approved by the clerk of this court, it is agreed between the parties that the judgment, if in favor of the defendant, shall go against the bond and sureties on said bond. In other words, it is agreed that said bond shall be considered as though suit had been made upon it and the formality of declaring upon said bond is by the judgment creditor hereby waived.”

The cause proceeded to trial, and verdict was for the appellee, and damages were assessed upon the indemnifying bond at thirty-five dollars for attorney’s fee. A judgment was entered upon this verdict that the property named be returned to the defendant Hartsock and that he recover from the Harris Ice Cream Company and sureties on its indemnifying bond the amount of thirty-five dollars and all costs, from which judgment this appeal is prosecuted.

Two contentions are made: First, that the replevin sued out by Hartsock against the constable did not lie and that the action must fail, and in consequence the indemnifying bond cannot be the foundation of a right of action to support a judgment; and, second, that the exemption claimed could not be allowed because the above section cannot apply to the appellee Hartsock for the reason that the village or town of New Augusta was not incorporated, and that therefore it was not a city, town, or village within the meaning of thé said section.

As to the first proposition, we have only to say that the agreement set out and the proceeding upon the indemnifying bond waived this claim. The indemnifying bond was demandable by the officer at any time the property seized by him was claimed to be exempt property, and notwithstanding the error of suing out a writ of replevin against the constable, which, of course, could not be maintained, the bond was good as indemnity for the officer levying the execution, and, suit by the agreement being upon the indemnifying bond, we think the appellant must lose on this issue.

As to the second proposition, the exemption is claimed as above stated under section 2147, Code of 1906, section 1822, Hemingway’s Code, and there is nothing in the language of this statute by which it can be determined whether the city, town, or village mentioned must be incorporated or unincorporated. In other words, the statute does not define what is meant by a city, town, or village. In referring to the chapter on municipalities, we find that chapter recognizes unincorporated territory as villages, towns, and cities. Section 3312, Code of 1906, section 5809, Hemingway’s Code, provides how unincorporated villages, towns, and cities may be incorporated. Section 3313, Code of 1906, section 5810, Hemingway’s Code, and other sections, recognize and deal with incorporated cities, towns, and villages. If the exemption. statute dealt with governmental powers, it would refer to municipal corporations, because an unincorporated municipality does not exercise governmental functions. The authorities generally recognize two classes of villages, and towns, one incorporated and the other not incorporated. This court has not decided the precise proposition presented, but decided that under section 1047, Code of 1880, cities, towns, and villages under that statute meant incorporated cities, towns, and villages; but the reason which seems to have driven the court to this conclusion was that the statute as it then existed gave the municipality a right of action against a railroad for the violation of the statute in certain cases, and the court reached the conclusion that in villages, towns, and cities referred to there must be incorporated, because an unincorporated city, town, or village was not a legal entity capable of suing and being sued.

In the present case, however, the statute is dealing with the class of householders who are not farmers and who would not have the exemption ordinarily provided for that class of people, provided for under section 2189, Code of 1906, section 1812, Hemingway’s Code. In order to protect householders in cities, towns, or villages, it was thought best to let the exemptionist select such personal property, not to exceed two hundred and fifty dollars, as he might deem most useful to himself, or to select in lieu thereof articles specified to the head of the family under the other section. The intention of the legislature was to give protection to a class of people classified according to a condition. The fact of a place being legally incorporated would not make it different for the purposes of exemption from one not incorporated. The condition influencing the legislature would exist equally in each case.

In the case of Mikael v. Equitable Securities Co., 32 Tex. Civ. App. 182, 74 S. W. 67, the court of civil appeals of Texas dealt with a similar proposition. In that case the Constitution of Texas provided that a homestead may consist of' lot or lots in a city, town, or village, and if the family does not reside in a city, town, or village, it may consist of any quantity of land not exceeding two hundred and fifty acres when used for homestead purposes. The court in its opinion quoted from authorities as to the definition of a town or village and reached the conclusion that it was not necessary that the city, town, or village be incorporated to maintain the exemption, and that the exemption as applied to cities, towns, or villages applied in that case rather than the rural exemption. It quotes from the case of People v. McCume, 14 Utah, 152, 46 Pac. 658, 35 L. R. A. 398, decided by the Utah court, to which case is appended a case note collating the authorities upon this subject showing that the various courts of the country in defining terms towns and villages did not deem the legal incorporation of them as conclusive. We have examined many of these cases and think, as applied to the present controversy, the term does not necessarily mean an incorporated city, town, or village.

It is urged that there is no method of determining what is within a city, town, or village in the absence of the incorporation because it would have no boundaries. The ques-' tion would be determined in such case as a question of fact, and if the territory was settled up in such manner as usually found in cities, towns, and villages, it would fall in that class. The incorporation would show when it is incorporated exactly the territory embraced in the corporate limits, but if there was no corporation the limits could be determined as any other question of fact.

The judgment will be affirmed.

Affirmed.