State ex rel. Hill v. Gardner

Citations

• 32 Wash. 550
• 73 P. 690
• 1903 Wash. LEXIS 455

Syllabus

<p>MANDAMUS-AGAINST SHERIFF-COMPELLING RELEASE OF EXEMPT PROPERTY -INADEQUACY OF REPLEVIN.</p> <p>Mandamus will lie to compel a sheriff to release exempt property held by him under attachment for the reason that replevin does not furnish a speedy remedy, since it may result in withholding possession from the debtor until the end of an extended litigation.</p> <p>SAME.</p> <p>Under Bal. Code, § 5755, which provides that mandamus will lie “to compel the performance of an act which the law especially enjoins as a duty resulting from an office, trust or station,” a sheriff is bound to return upon demand exempt goods which he had levied upon, where the creditor has not demanded an appraisement thereof within a reasonable time, inasmuch as Bal. Code, § 5255, provides that upon the debtor’s furnishing the officer with a list of his personal property, together with that claimed as exempt, the officer shall return with his process the list of property claimed as exempt, in case no appraisement thereof had been required by the creditor (Fullerton, C. J., dissents).</p> <p>ATTACHMENT-EFFECT OF APPEARANCE —WAIVER OF EXEMPTIONS'.</p> <p>No time being specified in the statute when the debtor shall claim his property as exempt from levy, his appearance and motion for the dissolution of an attachment would not constitute a waiver of the right to claim his exemptions.</p>