Anderson v. Bruflat ( 1918 )

McCOY, J.

This appeal is from a judgment granting peremptory wirit of mandamus cotamiandling appellant as sheriff to turn over certain personal • property 'to respondent, which property consisted almost entirely of household gofcds and kitchen furniture tiliiereto'flare levied upon under arid! ¡by virtue of a warrant of attachment against the husband of respondent.

[1, 2] The respondent claimed said property as exempt from levy under sections. 346 and 347 of thie Oode of Civil Proveedme. The respondent anldl her husband were and hiad been residents of this state for miainy years. Thie debt upon which the attachment was issued was1 not incurred -for property obtained under false pretenses!, nor for laboreras or meehlanic’s' wages., nor for necessaries1 of life, nlolr foir physician's, services, nor for the purchase price of any of said property claimed to be exempt. It also appears thiat the said diebtor .wais not in the act of absconding or removing from the state with s'aiidl property. Upon appraisement it was' ascertained! .that said 'property was of value less' than $750, and being of .tihie value of about $148. It alisb appears itflnati respondent,’» husband failed amid refused upon notice to claim s'aiildi property as exempt oir to s'dletet a- person to act as appraiser, anidl that respondent a® the wife of saiiidi debtor made sudr claim for exemption and designated a person ito act as such appraiser in accordance w-itih the Statute. After such appraisemWet anidl .alscertalinmient of the value icf said property, respondent demanded) thaJb defendant, as sheriff, turn over and deliver the same to her, which appellant refused anidl neglected sio to do; and thereupon respondent instituted such mainldlamiuis; procedure. It is the contention of appellant that maoidamirs will not lie undler tlie circumstances of this case because it does' not appear that respondent has not established her legal right Itloi the possession of the property; and' also becatHsle the alctis sought to be compelled by mandamus' are discretionary and quasi judicial in nature and not ministerial. We are of the view that each and all of these contentions of appellant are not well grounded. This -court in the -case of Meyer v. Beaver, 9 S. D. 168, 68 N. W. 310, held that mandamus was a proper remedy under -circumstances very similar to those in this case. In that case the court saidi:

“Our exemption law, -basied upon considerations. of sound public policy, was designed for tire benefit of toe debtor and his family, and the entire statute upon Ithie subject sbo-ulMi be considered and liberally construed.”

[3] After claim' foir exemption- has been'maldie, and where it -is absolutely clear and certain, a® in ithi-s case, that the -property levied- upon i® exempt, it -is the duty of the sheriff -or other officer having the process to imim-ediiateity deliver the property -to the debtor -daiming sludh exemption, on the ground anidl for the reason that such property is not at all liable to- execution from the moment it is maldie to appear that the sarnie is exempt. If a sheriff or other officer were permitted! to still hold' possession of the property 'in spite o-f -the claim and fact that it wais .exempt, anidl ignore his duty to return tihie same to- the debtor, the entire piurplotee 'and effect of the eexm-ptiion ’law would be rendered nugatory aind of no 'benefit to the debtor. A debtor, if he w’ére compelled to bring replevin, or conversion, action in the courts to recover the property or tire value thereof, especially where the vailue dotes molt exceed that in this Case, 'the itiiim'e required' antdl expenses elf litigation- woullldl entirely c-omis-umie the value of the property, andi result in depriving the debtor oif the ’benefits sought to be secured to ihiiimi Iby the -exemption -statute. This seemis -to be the view beffid by oitlhe-r courts. State v. Gardner, 32 Wash. 550, 73 Pac. 690, 98 Am. St. Rep. 658.

[4, 5] No motion.' fldr new tri-ail appears- to have been- made. In the absentee of a mdtiioni for new ’trial- the sufficiency of t-he evidente to ■ sustain the findings of the trial oo-urt will not be co-nsideredl o-n appeal. It appears that affidavits arid! other files and records were before the court fldr ©omstidleraltioni, -and' so- far as appears from the record' 00 appeal', such affidavits, files, andi records were 'Submitted as evidence -without -objection. Under these circumstances in the absence of motion! for new trial and nothing appearing to- the 'Contrary, it will -be • .presumed that the findings were- supported by suffidianit 'evidence.

-Plnidiinig rid error in the record, the judgment appealed from is affirmed.