Williamson v. Krumbhaar

Opinion, Mr. Justice Clark:

The writ of fieri facias in this case came into the sheriff’s hands on May 23,1888; and about June 9th, following, George W. Rudder, the defendant therein, made a verbal demand upon Krumbhaar, the sheriff, for the exemption of $300; a more formal demand was made in writing on June 19th following. On July 16, 1888, A. W. Horton, Esq., the attorney for Williamson, the execution creditor, was notified by the sheriff that the appraisement and designation of the property under Rudder’s claim would be made on the 19th, to which Horton replied that he objected to the allowance of the exemption “because of the defendant’s laches in making his claim, and the consequent loss, expense, and delay to which the plaintiff was subjected; ” and also “ upon the ground that the conduct of the defendant lias been such as to forfeit his right to the benefit of the exemption laws.” The sheriff proceeded, however, with the appraisement, and set apart property to the defendant, under his claim, to the amount of $197.75. The writ with the appraisement, was returned in due form by the sheriff, and no further proceedings were had thereon. This suit is brought by Williamson, the plaintiff in the writ, to recover from Krumbhaar, the sheriff, the value of the goods which it is alleged were improperly set aside to the defendant in the execution.

*460 After the levy, on May 26, 1888, notice was given to the sheriff by Rudder’s wife that the goods levied upon were owned by her, and not by her husband, and on June 4th, following, a rule was entered for an interpleader; but, the wife failing to file-a bond in accordance with the order of the court, the inter-pleader fell, and the sheriff, on June 22d, was ordered to proceed with the execution. It is alleged that Mr. Marshall, the attorney who gave notice of Mrs. Rudder’s claim, was employed by Rudder to act in her behalf; and the appellant’s contention is, that Rudder was thereby precluded from making any claim of exemption. But it must be borne in mind that this is not a proceeding to set aside the appraisement; it is an action against the sheriff, and there is no evidence that he was aware of Rudder’s participation in the interpleader. If the case was being considered upon a motion to set aside the appraisement, this might have been a potential ground for so doing; but the sheriff cannot, in such a case as this, be affected by any fact of which he had no knowledge. It is true that Mr. Horton, in his letter of July 17th, had objected to the allowance of the exemption, upon the ground that the conduct of the defendant had been such as to forfeit his right, but the sheriff could not deny the defendant’s claim upon a general and indefinite charge of that kind. If there was any specific act of the defendant, known to tlie plaintiff or his attorney, which would forfeit the defendant’s right to exemption, and they desired to affect the sheriff with notice of it, it was their dutjr to state what it was. The sheriff’s duty was to set apart the property, unless a -waiver or some other specific act of the defendant was brought to his notice which clearly, and without doubt, deprived the defendant of that right.

The sheriff has no right to demand an indemnity from the defendant; for this, in most cases, would practically defeat the operation of the act of assembly which secures to him this bounty. It seems, also, that he cannot secure himself by an indemnity from the plaintiff: Freeman v. Smith, 80 Pa. 264 ; unless there is á claim of property by some third party, as in Dieffenderfer v. Fisher, 3 Gr. 30 . As Mrs. Rudder’s claim fell with the interpleader, it may well be doubted whether, under our cases, the sheriff could have protected himself by indemnity. If, then, according to the appellant’s contention, the de *461 nial or recognition of the defendant’s claim of exemption by the sheriff is at his own peril, the execution creditor should at least be held to a full and specific disclosure of all the facts upon which he relies to defeat that claim.

The sheriff is invested with no judicial power or discretion in the premises; and it is only in the case of a formal waiver, or of a wilful or wanton disregard of the execution creditor’s plain right, that the sheriff may be held for damages in recognizing the defendant’s demand. The proper practice in all disputed cases where the sheriff mistakenly or wrongfully allows an appraisement, as stated by Mr. Justice Agnew, in Seibert’s App., 73 Pa. 361 , is to move the court to set the appraisement aside. In that mode of procedure, the sheriff, having discharged his duty in good faith, is relieved from responsibility, and the parties litigant stand squarely upon their respective rights. The questions of fact involved are then judicially determined, and the result is binding upon the parties.

We are of opinion, moreover, that the plaintiff’s demand in this case was in time. The writ, as we have said, issued May 23,1888. A verbal demand for the exemption was made about June 9th thereafter. The general rule is that the exemption should be allowed when it can be done without prejudice to the rights of creditors ; it must not be unnecessarily delayed, until costs have been incurred which might have been readily avoided: Cornman’s App., 90 Pa. 257 . In a number of cases, it has been held to be in time if made at a period so early as not to delay the sale, or to require new advertisements: Commonwealth v. Boyd, 56 Pa. 402 ; Yost v. Hefner, 69 Pa. 70 . In this case, no day of sale had yet been fixed, no advertisements posted, nor is it shown that any other expense had been incurred.

The judgment is affirmed.