dissenting.
I agree that an order sustaining a- writ of attachment is not an adjudication whether or not the property levied upon was exempt from judicial process, and that the exemption in favor of a debtor of personal property to the *428value of $500, provided by section 521 of the Code of Civil Procedure, is in addition to the specific exemptions designated in section 530 of said Code, but I do not assent to the proposition that in an action by a creditor against a sheriff for releasing property seized by him under an attachment it is a sufficient defense for the officer to show that the property was specifically exempt to the debtor. This doctrine implies that an officer may plead such exempt character of the property,. although the debtor never claimed it was so exempt, and it was not released on that ground. It is too well settled to require the citation of authorities in support thereof that the statutory exemption of chattels from levy and sale on execution or attachment is a personal privilege which must be claimed by the debtor, or his agent or representative, before the sale or the right will be lost. And this rule is as applicable to the specific exemptions enumerated in section 530, as to the exemption of $500 in lieu of a homestead authorized by section 521, since said section 530, after enumerating the personalty specifically exempt, declares that “all of which articles hereinbefore intended to be exempt, shall be chosen by the debtor, his agent, clerk, or legal representative, as the case may be.”
It is manifest that property levied upon which is specifically exempt must be claimed as such before sale either by the debtor himself or some one by him duly authorized to act in his behalf. There is in this record not a particle of evidence tending to show, nor is there any averment in the answer, that the attaching debtor, Scott, ever demanded of the sheriff that the property be returned to him on the ground that it was specifically exempt, or that it was released as being exempt under section 530. On the contrary, the uncontradicted evidence discloses that the debtor and officer alike acted upon the theory that the property was exempt under section 521. Scott filed with the sheriff such-an inventory of his personal property as required by section 522 of said *429Code to entitle a debtor to avail himself of the |500 exemption provided by section 521, and the sheriff attempted tó appraise the property under section 522, but called to his assistance as appraisers only two freeholders, instead of three as by said section required. The appraisement was therefore invalid and constituted no justification to the officer to release the property from the levy of the attachment. The trial court directed ia verdict for the defendant on the theory that the property was exempt under section 530, while the debtor, so far as this record shows, never claimed the property ovas specifically exempt, and this court approves and sanctions the judgment rendered on the verdict. 1 am'unable to reach the conclusion that an officer can release from the levy of an attachment personal property as being exempt under section 521 of said Code, and afterwards justify his action by showing that the chattels were specifically exempt, -when the debtor had never claimed that they were so exempt. Scott waived his right to assert the specific exempt character of the property, and it is no justification to the sheriff to establish the property was exempt under the provisions of said section 530. Under the decision of the majority, carried to its logical extent, if a sheriff releases his levy upon personal property because the debtor was not the'owner thereof, or for any other cause, the officer may defeat a suit brought against him by the creditor for such release, by establishing that the property was exempt, although the debtor had never claimed his exemption. The judgment of the district court is wrong and should be reversed.