Summary
In Beckman v. Manlove (1861) 18 Cal. 388, 389, for example, the Supreme Court held a setoff could not be used to retain possession of property exempt from execution.
Summary of this case from Birman v. LoebOpinion
Appeal from the Sixth District.
Under an execution issued on a judgment in favor of one Williams, and against Beckman & Schwegerle, defendant Manlove, as Sheriff, levied on and sold two horses and a wagon belonging to Beckman, who claimed the property to be necessary for his use as a farmer, and, therefore, exempt from execution. Beckman sued Manlove for the value; and the main defense was, that Beckman was not a farmer, but a hotel keeper in the city of Sacramento, and that the property seized was not exempt. Beckman having recovered judgment for the value of the property, Manlove then obtained an assignment to him of the Williams judgment, and made the motion stated in the opinion of the Court. Defendant, Manlove, appeals.
COUNSEL:
E. B. Crocker, for Appellant, cited Pr. Act, secs. 5, 48; Russell v. Conway , 11 Cal. 102; Simpson v. Hart, 14 Johns, 74; Barlow on Set Off, 38, 39; Mallory v. Norton, 21 Barb. 424.
Henry Starr, for Respondent.
JUDGES: Cope, J. delivered the opinion of the Court. Field, C. J. concurring.
OPINION
COPE, Judge
The plaintiff recovered a judgment against the defendant for the seizure, under execution, of certain exempt property. The defendant afterwards procured an assignment of the judgment upon which the execution issued, and thereupon moved the Court to set of the latter judgment against the former. The Court denied the motion; and the defendant appeals.
We think the relief asked was properly refused. The defendant was sued as a wrong-doer, and, as between him and the plaintiff, the judgment for the value of the property must be regarded as standing in the place of the property itself. He cannot be allowed to take advantage of his own wrong, and by an illegal act defeat the purpose of the statute. A different doctrine would operate a practical repeal of the exemption laws.
We are referred to the case of Mallory v. Norton, 21 Barb. 424, as an opposing authority. The decision in that case proceeded upon the ground that the party might have protected himself by bringing his action in the nature of replevin, for the delivery of the property. It is sufficient for this case to say, that the plaintiff could not have compelled a return of the property even if he had brought his suit in that form. By tendering an undertaking in accordance with section one hundred and four of the Practice Act, the defendant could have retained it. Upon the recovery of judgment, he could have forced the plaintiff to a suit upon the undertaking, and thus brought the controversy to precisely the same point. The process would have been a little more circuitous, but the result would have been the same.
Order denying the motion affirmed.