Aldous v. Olverson

Citations

• 17 S.D. 190
• 95 N.W. 917
• 1903 S.D. LEXIS 25

Syllabus

<p>1. In an action by a wife against a sheriff for seizing her goods under an execution against her husband and others, the court admitted the sheriff’s return on the execution containing statements not his duty to make, to the effect that the judgment creditor had directed the levy, and all the defendants had consented to it, and agreed to pay their proportionate share, but that,afterwards, the husband, refusing to pay, the sheriff sold the husband’s property. Held, that on no theory was this return evidence against the wife, she not being a party.</p> <p>2. After a husband has duly transferred property to his wife, an execution was issued against him on a subsequent incurred liability as surety on a bond, and property of the wife was levied on. Held,'' that in an action by her against the sheriff for the illegal .seizure, an affidavit made by the husband claiming some of the property levied on as being exempt was not admissiible against the wife, it not appearing to have been made with her knowledge.</p> <p>3. Evidence that the husband had listed the property with the assessor ■ was not competent against the wife.</p> <p>4. There was evidence for the sheriff that the bond signed by the husband-, contained a statement that he was the owner of certain of the property. Held, error to exclude evidence for plaintiff of statements made by the husband, at the time of signing the bond, as to property owned by him.</p> <p>5. It was error to instruct that a sale of all of a man’s property when he is largely in debt is evidence of fraud, the evidence showing that the husband had some debts at the timejof the transfer, but not.that he was largely indebted.</p> <p>6. Testimony by a wife in supplementary proceeding on ap execution against her husband is within Comp. Laws 1887, § 5260, declaring that a wife cannot be examined for or against her husband without his consent; therefore such testimony taken without his consent is not admissible to impeach the wife in an action by he