Page:North Dakota Reports (vol. 3).pdf/109

 John P. Wagner vs. Gunder Olson.

Opinion filed Jan. 25th, 1893.

Attaching Exempt Property—Failure to File Schedule.

While § 5130, Comp. Laws, requires 2 debtor who desires to receive the benefit of the exemptions mentioned in § 5128, Id., to serve upon the officer who has seized his property under execution or attachment a verified schedule containing all his personal property, yet the failure of the debtor to include in such schedule all of such property, when done with no fraudulent intent, and when the officer is in no manner misled thereby as to the amount of the debtor's property, will not deprive the debtor of such exemptions, but only debars the debtor from selecting any property as exempt which does not appear in the schedule.

Mingling of Goods—Purchase Money—Execution.

Where a merchant purchases goods of the same class and quality from different parties, and in the ordinary course of business so mingles the goods upon his shelves that it becomes impossible to designate the goods purchased from any one party, yet such fact will not render the entire stock liable to seizure at the suit of one of such parties to recover the purchase price of goods sold to such merchant, notwithstanding § 5137, Comp. Laws, provides that no exemption shall be allowed against an execution issued for the purchase money of property that has been seized under the execution.

Claim and Delivery for Exempt Property.

When, in such a case, the owner brings the action of claim and delivery against the officer holding such property, on the ground that the same was exempt from such seizure, the burden is upon the officer to show what specific property so held by him was liable to seizure for the purchase price thereof under the process in his hands.

Affidavit that Property is Exempt.

The action of claim and delivery will lie at the suit of the defendant in attachment to recover property seized under a writ of attachment, when it is stated in the affidavit that such property was exempt from such seizure.

Appeal from District Court, Walsh County; Templeton, J.

Action in claim and delivery by John P. Wagner against Gunder Olson, sheriff. Plaintiff had judgment, and defendant appeals.

Affirmed.

Bosard & Van Wormer, for appellant.

C. A. M. Spencer, for respondent.