Brown v. Edmonds

Citations

• 5 S.D. 508
• 59 N.W. 731
• 1894 S.D. LEXIS 89

Syllabus

<p>1. Where the statute invests the judge, as distinguished from the court, with the power to make a certain order, and it is evident that the judge made and intended to make it as Ms, and not the court’s order, this court will treat such order as made by the judge, and not by the court.</p> <p>2. Such an order is not appealable to this court.</p> <p>3. An appeal from a subsequent order of the court refusing to set aside such judge’s order, and also from such first or judge’s order in one notice, will not be dismissed for duplicity.</p> <p>4. The order made by the court being appealable, including in the notice the order of the judge, which was not appealable, will not defeat the appeal from the order that was appealable.</p> <p>5. If, in the examination of a debtor in supplementary proceedings, the title to certain personal property sought to be reached is claimed by another than the debtor, and the title to the same is fairly in dispute, the question of ownership cannot be summarily settled by the judge in such proceeding.</p> <p>6. A watch and chain habitually carried upon the person of the debtor, for his own convenience, and not used by the household, nor for the benefit or comfort of the family, is not exempt as “household furniture.”</p> <p>7. The effect of the omission of defendant to include such watch and chain in his schedule, and claim for additional exemptions, under sections 5128-5130, Comp. Laws, was, in general, as declared by said section 5130, to render the same “not exempt.”</p> <p>8. It appealing that such ommission resulted from defendant’s misunderstanding of what would be included in the term “household furniture,” the mistake was one of law, and on that account, if for no other, did not authorize a correction of the schedule.</p> <p>9. The examination closely following the making of the schedule, and it not appearing that any change had taken place in defendant’s property since making the same, it was, in such proceeding, conclusive upon him.