Tubbs v. Garrison , 68 Iowa 44 ( 1885 )

Adams, J.

1. fxecuemptpropabmittmeave dencefekopI. The defendant admitted the levy and sale, at least in respect to some of the goods, but denied that they 'were exempt, because, at the time of the levy, plaintiff had started with his family to leave the state. The defendant also pleaded that, even if the plaintiff, with his family, had not started to leave the state, he was estopped from denying that he had started to leave the state, because he started on a journey with his family and left the county, and, before starting, informed divers persons that he was intending to leave the state, which fact came to the defendant’s knowledge, and the defendant, believing the plaintiff’s statement, and relying upon the same as true, made the levy in question. The plaintiff demurred to so much of the defendant’s answer as set up an estoppel, and the demurrer was sustained. The defendant assigns the ruling- sustaining the demurrer as error. In our opinion the court did not err. The defendant was not justified in acting upon an expression of intention. It was the plaintiff’s right to change his intention, as the defendant should have known.

THE SAME. II. The defendant introduced as a witness one Bolter, who testified that about July 2 or 3, 1884, he had a conversation with the plaintiff relative to his leaving r O the state. He was then asked to state what the conversation was. But the court, upon objection by the plaintiff, excluded the evidence, and the defendant assigns the ruling as error. The plaintiff did not start upon his journey until July 5th. A declaration of intention made after he started, or so near the time of starting that the declaration could be regarded ‘as a part of the res gestes, would have been admissible as tending to characterize the act. But we think the declaration was not made sufficiently near the time of starting to be properly regarded as a part of the res gestes, and we know of no other ground upon which evidence of it could be admitted.

2,--:-• III. The defendant offered to show by one hlassie, his deputy, that he was informed, before the levy, that theplainthad left the state. The evidence, under the plaintiff’s objection, was excluded, and we think rightly. The plaintiff could not be held to lose his right of exemption by reason of any information which an officer or his deputy might receive.

the gtTxrmIY. The defendant offered to show by one Copeland that, after the plaintiff had started upon his journey, he went to the plaintiff’s house, and found some of his furniture boxed up, and clothing and bedding in a confused condition. Tire court, under the plaintiff’s objection, excluded the evidence, and we think rightly. The condition of the plaintiff’s furniture might indicate an intention to remove from that town, but we cannot say that it indicated anything more.

3. —: ---: structioii. V. The defendant asked an instruction in these words: “If you find from the evidence that, prior to the time the officer levied upon the goods in question, the plaintiff liad started to leave the state, then, in that case, the goods so levied upon were not exempt, and plaintiff cannot recover in this action. The word ‘start’ is not limited to the actual setting out upon a journey; it means as well the commencement of an enterprise or undertaking, aud, in determining in this case whether plaintiff, prior to the time the goods in question were taken by the officer, started to leave the state, you should take into consideration the statement, if any, made by the plaintiff with reference to his intending to remove from the state; his acts and conduct; the disposition, if any, made of liis property; the condition in which he left his dwelling; the condition of the furniture in the house; the statements, if any, made by him after his return as to where he had been.” The court refused to give this instruction, and the defendant assigns the refusal as error. It may be conceded that the rule embraced in the first sentence of the instruction is correct. It may be conceded, also, that under Graw v. Manning, 54 Iowa, 719, the word “start” is not limited to the actual setting out upon a journey. But that case has, we think, no application to this. The plaintiff did not leave the state with his family, but went.^ t.o Chickasaw county, where he remained with liis father until November, and returned to Harrison county. The question was not as to when a person can be said to start to leave the state, where the intention to leave is conceded, and where, also, something had been done towards carrying the intention into execution. It was not necessary, therefore, to define the meaning of the word “start.” The plaintiff denies that he ever did anything with the intention of leaving; and as to whether he had such intention, and commenced putting it in execution, was a question for the jury, and was, we think, properly submitted. The court instructed the jury that there must at least be an attempted departure without the intention of returning for the purpose of residence. Some of the circumstances, at least, mentioned in the instruction asked as indicating an intention to leave the state we have already said could not be so considered. The instruction, therefore, was properly refused.

4. evidence: household petencyoi owners to testiiyto. YI. The verdict and judgment were for $162.30. It is insisted that the property was not of that value. It may be conceded that, according to the testimony of the disinterested witnesses, it would appear that the verdict and judgment were too ku’ge. But , „ , , . , , according to the testimony of the plaintiff and his wife, it would appear otherwise, and wTe cannot disregard their testimony. It is insisted, to be sure, that they were not competent witnesses, because it did not appear that they were acquainted with the value of such property. But the property was ordinary household goods. It was such as all housekeepers are accustomed to buy; and, while they may not be the best judges of the value, we think that they may be presumed to have such knowledge upon the subject as to render them competent to testify upon it. We see no error in any of the rulings of the court, and the judgment must be

Affirmed.