Kirkpatrick v. Finney & Byrnes

The opinion of the court was delivered by

Egan, J.

This suit is between the same parties, and was tried upon the same evidence with suit No. 6620 of the docket of this court just ■decided. It was brought to enjoin the seizure under the same judgment •as in that case of certain articles of household furniture and personal property in the house occupied as a residence by plaintiff and her husband, J. J. O’Brien. The pleadings of both plaintiff and defendant are substantially and almost in terms the same as those in 6620. The evidence is not more satisfactory in support of the demand of the wife plaintiff in this case, than it was in that just decided. If entitled to any part of the property seized she has not identified it. Both claims rest substantially on a similar or the same state of facts, and are governed by the principles announced in the opinion in 6620 ; and for the reasons .stated in that case it is unnecessary to pass upon either the plea of prescription or the validity of the judgment of separation. There was -the same error in admitting in this case the evidence in the case for separation which has been remarked upon in ease 6620. We are not here called upon to pass upon the exemption under any law of any portion of the property of the husband. He is not before us asking such exemption, if entitled to it to any extent and for any reason. The claim asserted is that the property seized under execution, against the husband belongs not to him but to the wife, and is therefore and not by reason of any exemption in his favor, not liable to be seized or sold to pay his debts. To avoid misapprehension, however, we may as well remark that in our opinion the exemption of fees and salaries of office can not be extended by implication to property purchased with them or with money derived from them.

It is therefore, and for the reasons given in 6620, ordered, adjudged, and decreed that the judgment of the court below be annulled, avoided and reversed, and the injunction sued out by plaintiff be dissolved, and her claim to the property seized under the fieri facias in this case be disallowed. As, however, the parties and sureties on injunction bonds are the same in this ease and in case 6620, just decided, and as the judgment in that case awarded interest and general damages on the same debt and judgment, we simply decree in this case furthermore that the defendants Finney & Byrnes do have and recover from the plaintiff and John Phelps & Co. and Isaiah Green, sureties on injunction bond, in solido, two hundred dollars damages as counsel fees in this ease and costs of both courts.