Meyer v. Beaver

Citations

• 9 S.D. 168
• 68 N.W. 310
• 1896 S.D. LEXIS 131

Syllabus

<p>1. An alternative writ of mandamus to compel a sheriff to restore to plaintiff property claimed by her as exempt, out of the property of her husband in defendant’s possession, under a writ of attachment against plaintiff’s husband, cannot, on demurrer, be held to show that plaintiff’s claim for exemptions, under Comp. Laws, Sec. 5133, in default of claim by her husband, was unreasonably delayed — it being alleged that she made her claim within a reasonable time; that the claim was made November 25th; that it was not sooner made because of proceedings theretofore pending, which led her to believe it would not be necessary; that immediately on said levy, on October 18th, proceedings were begun by her husband, which resulted in an order of disolution of the attachment October 27th; that plaintiff in attachment attempted to appeal from such order, and had not secured sufficient securities when the mandamus proceeding was begun.</p> <p>2. Absolute exemptions, defined in the sections preceding Comp. Laws, Sec. 5133, are within the provision of said section that, if in any case the debtor fails to claim “the whole or any of the aforesaid exemptions,” his wife is entitled to make such claim.</p> <p>3. An alternative writ of mandamus to compel a sheriff to restore exemptions which have been claimed out of property taken on attachment is not demurrable because failing to allege that the attachment was not issued for laborers’ or mechanics’ wages, or for a physician’s bill; it being conceded that part of the property is absolutely exempt.</p>