{ "id": 1879258, "name": "Probst & Hilb vs. Scott", "name_abbreviation": "Probst & Hilb v. Scott", "decision_date": "1877-05", "docket_number": "", "first_page": "652", "last_page": "657", "citations": [ { "type": "official", "cite": "31 Ark. 652" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "50 Cal., 101", "category": "reporters:state", "reporter": "Cal.", "case_ids": [ 2318098 ], "opinion_index": 0, "case_paths": [ "/cal/50/0101-01" ] }, { "cite": "27 Ark., 656", "category": "reporters:state", "reporter": "Ark.", "opinion_index": 0 } ], "analysis": { "cardinality": 413, "char_count": 7869, "ocr_confidence": 0.494, "pagerank": { "raw": 4.144094378985542e-07, "percentile": 0.9112677997829217 }, "sha256": "2e10d22250ef08363299dce0ae9da1daf27f72cc234aa864d678464cb66f7e29", "simhash": "1:0e9865692f382724", "word_count": 1359 }, "last_updated": "2023-07-14T18:38:42.897988+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Probst & Hilb vs. Scott." ], "opinions": [ { "text": "jEnglish, Ch. J.:\nOn the 18th of July, 1874, Probst & Hilb recovered a judgment before a justice of the peace of Pulaski County, against T. W. Holland and Thomas C. Scott for $242.30, on which an execution was issued and returned nulla bona.\nA transcript of the judgment was filed in the office of the Clerk of the Circuit Court of said county, and a writ of garnishment issued thereon against the Continental Eire Insurance Company of New York, as debtor of Scott, and served on a local agent of the company, who answered, it seems, that the company was indebted to Scott, on a fire policy, in the sum of $299.25.\nScott filed a petition praying to be made a party to the garnishment proceeding, and claiming that the debt due to him from the insurance company was exempt from the process of garnishment.\nHe states, in substance, that the debt, on which the judgment was rendered against Holland and himself, was contracted for goods, wares and merchandise, in the year 1872.\nThat at the time the judgment was rendered, he was possessed of certain personal property, consisting of liquors, glass ware and saloon furniture, in a saloon in the Anthony House, in Little Rock, worth $600, which w\u00a1as insured in the Continental Insurance Company for $400.\nThat about the 19th of September, 1875, the Anthony House was destroyed by fire, and petitioner lost by the fire the greater part of said property, and his loss was adjusted by the insurance company at $295.20.\nThat, before and at the time of the fire, his entire personal property did not exceed $700 in value, including the liquors, etc., above stated, and he claimed that the same was exempt from execution.\nThat, at the time of the issuance of the writ of garnishment, his entire personal property was as above stated, and that at the present time his entire personal property is as follows, viz: Eight billiard tables and furniture of the full value of $1,500, upon which there is an incumbrance of $1,476 for purchase money, and household furniture and wearing apparel of the value of $100. That this is all the personal property petitioner has,. except the said sum of $299.25, held for him by the insurance company, which is not otherwise indebted to him.\nThat all of said property is exempt from execution on said judgment under the Constitution and laws of the State, and petitioner selects said property, viz: Eight billiard tables and furniture, in the Metropolitan saloon; household furniture and wearing apparel of the value of $100, and the sum of $299.25, held as aforesaid for him by said insurance company, and claims 'it as exempt from execution herein.\nThe plaintiffs moved the court to strike from the files the petition of Scott, which motion the court overruled.\nThe matter was then submitted to a jury, who returned a verdict that The property is not subject to execution.\u201d Whereupon the court rend\u00e9red judgment discharging the garnishee, and plaintiffs excepted and appealed.\nWhat instructions the court gave the jury, or what evidence they had before them, does not appear from the bill of exceptions. Nor do we see why a jury was empanneled. There was no answer to the petition of Scott, controverting or putting at issue any of its statements. The facts stated in the petition, being in no way denied or put at issue, it was a question of law for the court to determine, whether the debt due from the insurance company to Scott was exempt, or subject to the process of garnishment, and the court, in refusing to strike out his petition, decided, in effect, that he was entitled to the benefit of the exemption claimed. There was no question before the court about the other property claimed in the petition to be exempt from execution. It had not been levied on by execution, or seized by the garnishment.\nThe debt was the only matter in controversy.\nThe petition was verified by affidavit, and the legal question of exemption would have been better presented by demurrer to the petition, than by motion to strike it from the files.\nBut as both parties seem to regard the question of exemption as having been decided by the court in refusing to strike out the petition, and the decision of the court as having been reserved for review by the bill of exceptions, we will proceed to determine the question thus presented.\nSec. 1, Art. xii, Constitution of 1868, provides that:\n\u201cThe personal property of any resident of this State to the value of $2,000, to be selected by such resident, shall be exempt from sale on execution or other final process of any court, issued for the collection of any debt, contracted after the adoption of this Constitution.\u201d\nThe Constitution of 187.4 provides that:\n\u201cThe exemptions contained in the Constitution of 1868 shall apply to all debts contracted since the adoption thereof, and prior to the adoption of this Constitution.\u201d Sec. 9, Art. ix.\nThe debt, upon which the judgment of appellants was recovered against appellee, was contracted, it appears, in 1872, after the adoption of the Constitution of 1868, and before the adoption of the present Constitution.\nPrior to the adoption of the Constitution of 1868, particular articles of personal property, mentioned in the statute, were exempted from sale on execution. Gould\u2019s Dig., sees. 22-3, etc., Oh. 68; Acts of 1866-7, p. 3.09 ; 27 Ark., 656.\nThe framers of the Constitution of 1868 abandoned the policy of exempting specific articles, and provided for the exemption of personal property to the value of $2,000, to be selected by the debtor.\nThat a chose in action is personal property, does not admit of' doubt.\nA chose in action is not the subject of sale on execution under our statute, but it may be reached by garnishment; and, though it may be all the property that the debtor owns, the creditor may-reach it, and condemn it to the satisfaction of his debt by this-process, unless the debtor can claim the protection of the Constitution.\nThough a garnishment is not an execution, it is in the nature-of an execution. It is a means provided for obtaining satisfaction of the judgment of the creditor out of the property of the debtor. The chose in action is not sold under the garnishment process, but it is seized in the hands of him who owes the debtor, and the debtor is deprived of it, and the creditor gets the fruit of the deprivation, as effectually as if it were sold on execution in satisfaction of his judgment.\nThe exemption of the chose in action cannot be claimed under the strict letter of the Constitution, but is it not within its spirit and intention ? Exemption laws are liberally construed.\nThe Constitution of North Carolina exempts from execution \u201cpersonal property of the value of five hundred dollars, to be selected by the debtor.\u201d In Frost v. Naylor, 68 N. C., held that a chose in action is property, and, if selected by the debtor, it must be exempt. In that ease there was an attempt to reach the chose in action, and condemn it to the satisfaction of the judgment of the creditor, by a proceeding in the nature of our garnishment process. Freeman on Executions, sec. 237.\nIn this case the petition shows that the insured property was claimed by the appellee as exempt from execution, and that the debt garnisheed was the amount of compensation allowed him by the insurance company for the loss of the property by fire.\nThe property being exempt, it is but reasonable that the compensation for the loss, which represents the property, should also be exempt. Strouse\u2019s Executor v. Becker, 44 Penn. State B., 206 ; Houghton v. Lee, 50 Cal., 101.\nAffirmed.", "type": "majority", "author": "jEnglish, Ch. J.:" } ], "attorneys": [ "Ph'b, for appellant.", "Howard and M. L. Rice, contra." ], "corrections": "", "head_matter": "Probst & Hilb vs. Scott.\nExemption or chose in action:\nUnder the provisions of the Constitution of L86S, choses in action may be selected by the owner as exempt from a garnishment process.\nAPPEAL from Pulaski Circuit Court.\nHon. J. J. Clendenin, Circuit Judge.\nPh'b, for appellant.\nHoward and M. L. Rice, contra." }, "file_name": "0652-01", "first_page_order": 652, "last_page_order": 657 }