Rogers v. Ayers , 119 Tenn. 340 ( 1907 )

Mr. .Justice Neil

delivered the opinion of the Court.

This was an action of replevin, brought originally before a justice of the peace of Campbell county, for a horse and mule, which had been taken by defendant in error from the plaintiff in error, under an execution in favor of one L. P. Smith.

Prom the judgment of the justice of the peace an appeal was prayed to the circuit court of the county, and there the case was tried by the court without the intervention of a jury.

At the request of the defendant in error the court below made a written finding of facts substantially as follows :

That the horse and mule replevied were found by the levying officer and levied on in Jellico, Tennessee, and were the only horse stock of any kind that plaintiff in error had within the State; that plaintiff in error was not present when the levy was made, but on his return, when he learned that a levy had been made, he claimed the animals as exempt and demanded their restoration; that plaintiff in error was a resident and citizen of Jellico, Tennessee, and was the head of a family; that in addition to the animals levied on he owned two small mules, known as “bank mules,” such as are used in coal mines, but these mules were in Kentucky at the time the levy was made upon the other animals, and had been almost continuously at work in plaintiff in error’s coal mine in that State; that these bank mules were kept at work in che Kentucky mine, and, when not actually at work, were kept in a stable or barn at tbe mine, and were never kept in Tennessee, or nsed for hauling or other work in Tennessee; that these bank mules were still in Kentucky when the plaintiff in error demanded the return of the animals levied on; that plaintiff in error was accustomed to use the animals levied on in hauling coal and other articles in the city of Jellico.

On these facts the circuit judge rendered a judgment in favor of the plaintiff in error.

On the trial in the circuit court, after the facts above mentioned were found, the defendant in error asked the circuit judge to make the following additional findings:

“(1) That plaintiff, J. C. Rogers, fraudulently removed his property to Jellico, Kentucky, from his residence in Jellico, Tennessee, shortly prior to the issuance and levy of the execution in this case, and that said Rogers removed his property as aforesaid for the purpose of evading payment of the judgment on which the execution was issued and levied on the mare and mule ill controversy. This request is based upon the testimony of J. C. Rogers, the plaintiff, given on his cross-examination.

“(2) That plaintiff, J. C. Rogers, moved his barn, or, rather, rebuilt his barn, across the State line in Jel-lico, Kentucky, and stabled all his horse stock in Kentucky, and does now, after the suit was instituted in which the judgment on which the execution levied on the mare and mule in controversy was issued; that Rogers’- barn in Tennessee was burned on April 24, 1905; that L. P. Smith instituted suit against Rogers iu June, 1905, and after August 1, 1905,- Rogers built bis barn in Kentucky, where he has ever since, and does now, keep his four head, of horse stock, the mare and mule in controversy, and the two small bank mules, ‘Frank’ and a white mule. This request is based on the testimony of L. P. Smith and J. C. Rogers, the plaintiff.

“(3) That prior to the levy of the execution in question, and after the affirmation of the judgment in the supreme court, by defendant, Millard Ayers, on the mare and mule in controversy, plaintiff, J. C. Rogers, frequently rode, in a run, his bank mule, ‘Frank’ in Jel-lico, Tennessee; but that since said levy plaintiff, Rogers, has kept said mule ‘Frank’ in Kentucky. This request is based upon the testimony of J. C. Rogers and L. P. Smith.

“(4). That plaintiff, Rogers, operates a coal mine in Jellico, Kentucky, which mine is about five hundred or six hundred feet across the State line between Tennessee and Kentucky; that in this mine Rogers works his two small bank mules, and from this mine he works the mare and mule in controversy, in hauling coal into Tennessee to his customers, and to be loaded on cars in the city of Jellico, Tennessee, for shipment. .

“(5) That plaintiff, J. C. Rogers,, failed to bring the two small bank mules in his possession at the time of the levy, and tender them, and offer to exchange them for the mare and mnle in controversy; that, in claiming the mare and mule levied on as exempt, Eogers. never offered the officer, Millard Ayers, the two small mules in exchange for the mare and mule claimed as. exempt.”

The circuit judge declined to make these additional findings.

The case was appealed to thecourtof civilappeals, and there tried, resulting in a judgment in favor of the defendant in error, and from this judgment the case was brought to this court upon certiorari. Errors were assigned here by the plaintiff in error upon the decision of the court of civil appeals, and the defendant in error renewed here his objections to the findings of the circuit judge.

As to the matters covered by the first request, the testimony shows that the plaintiff in error’s piano was moved into Kentucky to avoid its subjection to the judgment of Smith. This request, as bearing upon the bank mules, will be disposed of later, in stating our general conclusion from all the evidence.

The matters stated in the second request are found in the evidence.

As to the matters contained in the third request, it . is shown in the evidence of the plaintiff in error that he frequently rode the mule “Frank” in a run into Jellico. This was before the execution was issued, but whether it was after the judgment of the supreme court does not appear clearly. We think, however, it may be inferred that it was after tbe affirmance of tbe judgment, and before tbe issuance of tbe execution.

Tbe matters contained in tbe fourth and fifth requests are found in tbe evidence.

From tbe additional facts found taken in connection with those found by tbe circuit judge, we cannot resist the conclusion that the plaintiff in error built his barn in Kentucky, and kept tbe bank mules over there, for tbe purpose of evading tbe payment of tbe Smith debt. We are of tbe opinion that tbe act of the plaintiff in error in so removing tbe two small bank mules out of Tennessee into Kentucky, and keeping them in tbe latter State, and bis failure to turn them over under tbe execution, in place of the animals levied on, must be regarded as a selection of these mules as bis exempt property. Of course, when tbe horse and mule were levied on, tbe plaintiff in error bad tbe right to select these latter animals as bis exempt property; but it became bis duty to put other property of tbe same kind in their place, if be bad it. Pyett v. Rhea, 6 Heisk., 137. It would not do for him to say that be could not place tbe other two mules under tbe execution in lieu of tbe live stock levied on, on tbe ground that the said other mules were in Kentucky, as stated. Having removed them into the latter State for tbe purpose of ¿.voiding tbe payment of tbe debt, be must be treated as baying selected those mules as bis exempt property. In Robinson v. Myers, it was said: “Tbe fourth provision in tbe general execution statute of 1828 (1 St. Law, 641), whether interpreted according to its letter or to its obvious policy, should be understood as intended to secure to every housekeeper with a family against the claims of judgment creditors, the use of only one work beast. If he has more than one, and for the purpose of eluding his creditors, or for any other purpose, sends all except one beyond the limits of his county, or even this State, he cannot be entitled to the exemption of the only one left at home, because he would then have more than one which he might use, and the statute only intended to secure to him the right to use one; and though an execution debtor, owning more than one work beast subject to the execution, may elect which one he will keep, yet, if one of them only be within reach of the excution, he cannot defeat the creditor’s levy on that one, by electing to keep it, whilst he retains the right to control and enjoy the use of another, which he will not substitute under the execution; for if he could do so a beneficent statute, enacted for his protection, might be prostituted as an engine of fraud and evasion, and thus perverted to ends altogether inconsistent with its spirit and policy. As, therefore] the facts in this case conduced to prove that the plaintiff had a work beast which he had carried to Tennessee, and there left, subject to his control at any time, the verdict and judgment in favor of the defendants, in this action of trespass, for selling under execution the only work beast belonging to him in this State, was not without evidence, or contrary to law, and should not therefore be disturbed.” 3 Dana (Ky.), 441, 442. Likewise, in the recent case of Fla. Loan & Trust Co. v. Crabb, it was held that concealment or removal beyond the reach of his creditors of part of his personal property by a defendant in an attachment, proceeding, as a preliminary to claiming his right of exemption, would, where the property remained concealed, be treated as a selection pro tanto by the debtor of his exemption. 45 Fla., 306, 33 South., 523.

We think both of these decisions are supported by sound reason and common sense.

That the counsel for defendant in error acted correctly in making application for additional findings is apparent from the rules laid down in Hinton v. Insurance Co., 110 Tenn., 113, 72 S. W., 118; and that we may, upon such requests made, review the evidence at large, when other material facts are found in the record not included by the circuit judge, is apparent from the same case. See page 129 of 110 Tenn., and page 121 of *72 S. W.

It results that there is no error in the judgment of the court of civil appeals, and it is affirmed.