Eastern Manufacturing Co. v. Thomas

This is an application for mandamus, in the original jurisdiction of this Court. The petitioners allege that the respondent as sheriff refuses to levy upon an automobile, the property of one Walter Baker, with a proper execution in favor of petitioners. The return of the sheriff admits the allegations of the petition to' be true, but says there is an apparent conflict between the statute and the Constitution with reference to homestead exemption for persons not the head of a family. While sec. 2631, Vol. I, Code of Laws, does appear to allow to such a person a homestead, not only in necessary wearing apparel and tools and implements of trade, but in “other property,” these words or “other property” have been stricken from the statute by an Act of the General Assembly, Vol. XXIV, 412, approved February 20, 1904.

So there is no conflict between the Constitution and the statute, and the petition -having been admitted as true, it is the plain duty of the respondent as sheriff to make the levy as prayed for.

It is, therefore, ordered and adjudged the respondent do forthwith make the levy upon and enforce the petitioner’s execution upon the said automobile of the said Walter Baker, as it does not appear said automobile is a tool or an implement of trade and is not exempt from levy and attachment under the homestead law to a person not the head of the family.