Humphrey v. Taylor , 45 Wis. 251 ( 1878 )

Lyos, J.

Section 31, ch. 134, E. S. 1858, as amended, provides as follows: “ISTo property hereinafter mentioned or represented shall be liable to attachment, execution or sale on any final process issued from any court in this state. . . . 7. Two cows, ten swine, one yoke of oxen and one horse or mule (or, in lien of one yoke of oxen and a horse or mule, a span of horses or a span of mules), ten sheep and the wool from the same, either in the raw material or manufactured into yarn or cloth; the necessary food for all of the stock mentioned in. this section for one year’s support, either provided or growing, or both, as the debtor may choose; also one wagon, cart or dray, one sleigh, one plough, one drag; and other farming-utensils, including tackle for teams, not exceeding fifty dollars in value.” (Tay. Stats., 1550, §32.)

A -mower is not specifically named in the statute; hence, if the mower in controversy is exempt property, it is so by virtue of the last clause of subdivision 7, which exempts “ other farming utensils, including tackle for teams, not exceeding fifty dollars in value.” It does not appear in this case that the plaintiff had any.“tackle for teams” when the sherifl seized the mower.

The case turns upon this question: Is the plaintiff, who is not a farmer, and who, when the levy was made, was not engaged in any business requiring the use of a mower, entitled to.the benefit of the exemptions given by the above statute? This is not an open question in this court. In Knapp v. Bartlett, 23 Wis., 68, this court held that articles exempted by subdivision 7 are exempted absolutely to all persons alike. The rule of that case is as broad as the statute, and every exemption that can be upheld in any case under subdivision 7,, whether the exempted article be specifically named therein or not, must be upheld in favor of any debtor.

That a mower is-a farming utensil, and that it may be exempt under certain conditions from seizure on execution (if its value does not exceed fifty dollars), we cannot doubt.

It is objected that there are no sufficient exceptions to enable this court to review the instructions given to the jury. The objection is not well taken. The instruction contained in the foregoing statement of the case was duly excepted to; and, although it does not appear that all of the evidence is contained in the bill of exceptions, yet sufficient appears in the record to show the materiality of that instruction. We think the instruction erroneous. The jury should have been instructed that if the value of the mower was less than fifty dollars, the plaintiff had the right to hold it as exempt property; and that the sheriff should have delivered it up to him when he asserted his right and demanded the property.

By the Court. — The judgment of the circuit court is reversed, and the cause remanded for a new trial.

Ryan, O. J., took no part.