Harlan v. E. D. Haines & Co.

Opinion,

Mr. Justice McCollum:

E. D. Haines & Co. obtained a judgment against Enoch L. Harlan, on which an attachment execution was issued March 21, 1874, and levied on his share of a fund in the hands of the trustee of the estate of his deceased father. He was not entitled to receive the fund attached until the death of his mother and an account was settled by the trustee. The attachment was served on him March 28, 1874, and on January 14, 1887, he filed with the prothonotary a claim for the benefit of the exemption law. An appearance was entered for the garnishees, but no other proceedings had been taken in the case when the exemption claim was made.

The single question presented for determination is whether it was in time.

The plaintiff in error insists that, as the exact amount of his share in the fund could not be ascertained until the termination of the life estate and the settlement of an account by the trustee, he was not required to make his claim for the exemption before the occurrence of these events ; and that a debtor may at any time effectually claim his exemption out of an attached fund, if the plaintiff has done no more than issue and obtain service of the attachment. It is true that the attaching creditors could not take the fund from the trustees pending the life estate, but by the service of the attachment they acquired a lien upon it, and the right to compel the trustee to account at the proper time. The fund was taken in execution and as surely in the custody of the law as a chattel levied upon.

The exemption statute of April 9,1849, is not self-executing. It extends a privilege to the debtor which he may claim or waive, and it is operative only on his demand. In connection with the privilege it confers on the debtor, is the duty which rests on him of promptly claiming it. When a debtor has notice of the seizure of his property on execution process, he must, without unnecessary delay, claim his exemption or he will lose it. It is a right which may be defeated by his laches, or may be protected by his vigilance. The omission of the creditor to bring the property to sale or to obtain judgment against the garnishee at the earliest practicable moment, will not necessarily extend the time within which the debtor may claim his exemption, or relieve him from the consequences of his default. His exemption is protected by his own vigilance and not by the indulgence of his creditor.

This is the lesson taught by the cases on this subject, and it is a wholesome one. A rule which requires diligence in the assertion of an exemption claim is reasonable, and it is just to debtor and creditor. Applying it to the case in hand it is clear that Harlan has no right to the exemption he now claims. His neglect- to demand it for nearly thirteen years after the attachment was served upon him, constitutes a complete waiver of the . right or privilege which the exemption statute affords. That unreasonable delay without proof of injury, such as the creation of additional expense or trouble to the creditor, may defeat his claim, is settled by Bitteuger’s App., 76 Pa. 105, in which it was decided that in an attachment execution proceeding where the attachment is served on the debtor, he must make his claim at the term to which the writ is returnable. In that case this court said, “ It is important in a matter of practice such as this, that there should be a definite rule to guide both parties. It is certainly not a hard one to require the defendant to make his claim during the term when he should appear to answer the writ.” In Bittenger’s Appeal, as in this case, the attachment was served on the defendant. In Howard B. & L. Ass’n v. Phila. & Reading R. Co., 102 Pa. 220, the attachment was not served on the defendant, and he was allowed his exemption after the first term, but because he made his claim for it as soon as he had notice of the execution of the writ. The rule established in Bittenger’s Appeal, supra, has not been infringed by subsequent decisions. It is a reasonable and just rule, and as it fully'sustains the action of the court below in this case,

The judgment is affirmed.