Opinion
File No. 6185.
Opinion filed July 29, 1933.
From a judgment of the District Court of Griggs County, Englert, J., plaintiff appeals.
Reversed.
M.W. Duffy, and McIntyre Burtness, for appellant.
A widow living alone is not the head of a family within Code § 3072, permitting a debtor who is a resident of this state and the "head of a family" to hold certain property exempt from execution, though she once had others living with her who depended upon her for support. Emerson v. Leonard, 65 N.W. 153; Blair v. Fritz, 144 N.D. 611; Fullerton v. Sherrill, 87 N.W. 419; Brusha v. Phipps, 126 N.W. 856; Matthews v. Jeacle, 55 So. 865, 867.
The wife cannot claim exemption against execution issued on a judgment against her unless she is the head of a family. Holleman v. Gaynor, 237 N.W. 827; Linander v. Longstaff, 63 N.W. 775, 776.
Section 7731, Compiled Laws of 1913, is applicable merely to the heads of families, and is a part of the Civil Code and does not relate to the survivors of a deceased person, or to probate proceedings. Woods v. Teeson, 31 N.D. 610.
The direction on a policy of fire insurance to pay to the mortgagee is not an assignment of the policy; its legal effect is that of a direction in advance as to the mode of payment. 6 Couch, Ins. § 1450.
A mortgage clause attached to a fire insurance policy which clause makes the loss, if any, under the policy, payable to the mortgagee, as its interest may appear, is not an assignment of the policy to such mortgagee. Erie Brewing Co. v. Ohio Farm Ins. Co. (Ohio) 89 N.E. 1065.
Where the policy provides that the loss, if any, is payable to another, to a mortgagee for example, instead of the insured, it is merely a designation of the person to whom it is to be paid, and is not an assignment of the policy. Flanders, F. Ins. p. 441; Union Bldg. Asso. v. Rockford Ins. Co. (Iowa) 49 N.W. 1032.
Lemke Weaver, for respondent.
It was the intention of the legislature to make a larger provision for widows and orphans than for the heads of families merely, thinking, no doubt, that the head of a family, being usually a man, could better take care of himself than could the widow or minor children if the father had died. Woods v. Teeson (N.D.) 154 N.W. 797; Bank v. Freeman, 1 N.D. 196, 46 N.W. 36; Fore v. Fore (N.D.) 50 N.W. 712.
The statute under consideration (Comp. Laws 1913, § 8725) is an exemption statute and not a statute of inheritance. Krumenacker v. Andis (N.D.) 165 N.W. 524.
The defendant claimed all the personal property as exempt in the county court, and the trial court allowed the household furniture as absolute exemptions, but denied the additional exemptions. The defendant is entitled to all of her exemptions. Fore v. Fore, 2 N.D. 260, 50 N.W. 712; Deeble v. Alerton, 58 Colo. 166, 143 P. 1096, Ann. Cas. 1916C, 863.
A sale of property will not be set aside as fraudulent at the instance of a creditor, when it appears that the property is exempt from execution. Dakota Trust Co. v. Headland (N.D.) 224 N.W. 220; Fisher v. Fisher (N.D.) 207 N.W. 434.
A man is regarded as the head of a family though without wife or children, as long as he continues to occupy the house used as such at the time of the death of his wife. Parsons v. Livingston, 11 Iowa, 104; Kimbrel v. Willis, 97 Ill. 494; Re Lamb, 95 Cal. 397, 30 P. 568; Cross v. Benson (Kan.) 64 L.R.A. 560; Leake v. King, 85 Mo. 413.
The homestead provisions of the Code are liberally construed as being for the protection and preservation of the family as a home, including the wife. Healy v. Bismarck Bank, 153 N.W. 392; Bursha v. Phipps, 126 N.W. 856; Elliott v. Thomas, 143 S.W. 563.
Where a mortgagor covers both exempt and non-exempt property, the mortgagor has a right, both as against the mortgagee and as against a creditor having a lien, by judgment or the levy of an execution, upon the non-exempt property alone, to demand that the mortgagee first exhaust the non-exempt property before resorting to the exempt. Miller v. McCarty (Minn.) 50 N.W. 255; McArthur v. Martin, 23 Minn. 74; Armitage v. Davenport, 31 N.W. 408; Horton v. Kelley, 41 N.W. 1031.
This is an appeal from a judgment dismissing a garnishment action. The principal action was one to recover on a promissory note executed by the defendant and her deceased husband. The garnishee interposed an affidavit admitting liability to the defendant. The defendant interposed an answer in the garnishment action asserting that a certain portion of the monies in the possession of the garnishee belong to a third party; and that the remainder of such monies are exempt. The issues thus formed were tried to the court and resulted in findings and conclusions in favor of the defendant. Judgment was entered accordingly and the plaintiff has appealed.
On the oral argument plaintiff's counsel stated that the defendant had died after the appeal had been taken, and suggested that the disposition of the cause be stayed until an administrator of her estate be appointed. Plaintiff's counsel further suggested that in view of the death of the defendant the question whether the monies were exempt had become immaterial, and that there remained no necessity for determining the questions that were tried in the garnishment suit.
But there is another question not presented by counsel which, nevertheless, clearly arises upon the record, and is decisive of the case. The record transmitted on appeal discloses that the defendant interposed an answer in the principal action wherein she denied liability upon the note. The record does not disclose that the principal action has been tried; and upon the oral argument it was admitted by counsel for both parties that the principal action has not been tried and, consequently, that no judgment has been rendered therein. In the concluding paragraph of the written brief appellant's counsel say:
"In conclusion we submit that the order and judgment appealed from should be reversed and the lower court directed to enter judgment to the effect that the $850.00 representing the proceeds of insurance on the household goods and furniture be held subject to such judgment as the plaintiff may secure against the defendant Hattie Young in the principal action, and that the garnishee in this action hold such money awaiting such judgment as shall be entered in such main action."
In these circumstances the district court was not warranted in hearing the garnishment action or rendering judgment therein. Section 7581, Comp. Laws 1913 provides: "When the garnishment is not in aid of an execution no trial shall be had of the garnishee action until the plaintiff shall have judgment in the principal action."
Garnishment is a statutory action and a party who invokes this remedy, and seeks to obtain a judgment therein must bring himself within the statute and follow its mandates. W.H. Warner Coal Co. v. Nelson, 204 Mich. 317, 169 N.W. 852. The plaintiff instituted both the main action and the garnishment action. The defendant appeared and interposed an answer in the garnishment action. This the statute authorized her to do. Comp. Laws 1913, § 7580. It was a condition precedent to the right of the plaintiff to proceed with the trial of the garnishment action that it first obtain a judgment in the main action. Comp. Laws 1913, § 7581. See also Miller v. Benecke, 55 N.D. 231, 212 N.W. 925; 28 C.J. 319. In short, it was incumbent upon the plaintiff, if it desired to proceed to trial with the garnishment action and obtain a determination of the issues raised therein, that it first obtain a judgment in the main action. This the plaintiff failed to do.
In the circumstances the taxable costs incurred upon the trial and those incident to the appeal are properly chargeable against the plaintiff. Accordingly the judgment is reversed and set aside, and the cause is remanded for further proceedings conformable to law. Either party may apply for a substitution of party defendant, if and when an administrator of the estate of Hattie Young, deceased, is appointed. If, after such substitution, the garnishment action proceeds to judgment, all costs, — except those incident to the trial and those incident to the appeal, — will abide the final determination of the action and be allowed to the prevailing party as provided by law.
NUESSLE, Ch. J., and BURR, BIRDZELL and BURKE, JJ., concur.
CHRISTIANSON, J. did not participate.