EZEKIEL EDGECOMB, Respondent, v. HIS CREDITORS, Appellants
Edgecomb v. His Creditors
EZEKIEL EDGECOMB, Respondent, v. HIS CREDITORS, Appellants.
[No. 1197.]
EZEKIEL EDGECOMB, Respondent, v. HIS CREDITORS, Appellants.
Appeal — Several Orders — One Subject — Undertaking on Appeal. — An appeal was taken from several different orders, all relating to the question whether certaiu property was exempt from execution, and but one undertaking was given: Held, that the several orders must be treated and considered as one order upon the question involved, requiring but one undertaking to perfect the appeal.
Execution — Exempt Property — Other Laborer — Livery-stable Keeper —Statute.—-In construing the statute of exemptions (1 Comp. Laws, 12S2): Held, that the business of a livery-stable keeper is plainly distinguishable from that in which cartmen, hucksters, peddlers, or teamsters are engaged, and that a livery-stable keeper is not “another laborer,” within the meaning of that term as used in the statute exempt.ing property from execution. (Leonard, J., dissenting.)
Appeal from the District Court of the Second Judicial District, Ormsby County.
The facts are stated in the opinion.
Trenmor Coffin and James D. Torreyson, for Appellants:
I. It cannot be inferred that a livery stable-keeper, so different and distinct in business and occupation from the classes specified in the statute, was intended to be covered by the general words, “or other laborer.” (City of St. Louis v. Laughlin, 49 Mo. 562; Grumley v. Webb, 44 Mo. 444; Sedg. on Stat. and Cons. 360, note a; State v. McGarry, 21 Wis. 496; White v. Ivey, 34 Ga. 198; Brusie v. Griffith, 34 Cal. 307j U. S. v. Irwin, 5 McLean, 184; McIntyre v. Ingraham, 35 Miss. 25; 1 Abb. Law Die. 418; 1 Bouv. Law Die. 460; Rawlings v. Jennings, 13 Ves. 46; Hotham v. Sutton, 15 Ves. 320; Sandiman v. Breach, 7 Barn. & Cres. 96; Williams v. Golding, 1 Law Rep. C. P. 73-78; Calhoun v. Knight, 10 Cal. 393; Dove v. Nunan, 62 Cal. 399; Biirgess v. Everett, 9 Ohio Stat. 425; Abercrombie v. Alderson, 9 Ala. 985; Corp v. Griswold, 27 Iowa, 379.)
II. Even conceding that Edgecomb might be held to be one of the persons mentioned in subdivision six, 1 Comp. L. 1282, the close carriage claimed as exempt is not of the class of property mentioned in the statute. (Quigley v. Gorham, 5 Cal. 4-18; Favors v. Glass, 22 Ala. 624; Gordon v. Shields, 7 Kan. 320; Ames v. Martin, 6 Wis. 361;' Robert v. Adams, 38 Cal. 383; Elder v. Williams, 16 Nev. 420.)
A. G. Ellis, for Respondent:
I. The appeal should-be dismissed because there is only one notice of appeal, one undertaking on appeal, one statement on appeal, and one transcript; and an attempt is made to appeal from several separate and distinct orders. (White v. Appleton, 14 Wis. 193; People v. Center, 61 Cal. 194; Skidmore v. Davies, 10 Paige, 317; Sweet v. Mitchell, 17 Wis. 125; Hayne on N. T. & A. 644-6.)
II. The property in question is exempt from execution, and was properly set apart by the court. (1 Comp. Laws, 1282; Wilcox v. Hawley, 31 N. Y. 648; Stewart v. Brown, 37 N. Y. 351; Mosely v. Anderson, 40 Miss. 54; Gillman v. Williams, 7 Wis. 337; Rodgers v. Ferguson, 32 Tex..533; Nichols v. Qlaiborne, 39 Tex. 363; Bevan v. Hayden, 13 Iowa, 125; Stewart v. Welton, 32 Mich. 56; Thomp. on Horn. & Ex. 734, 760, 805, 870, 873; Brusie v. Griffith, 34 Cal. 302; Forsyth v. Bower, 54 Cal. 639; Dove v. Nunan, 62 Cal. 400.)
91 Am. Deo. 695.
63 Am. Dec. 139.
58 Am. Dec. 272.
70 Am. Dec. 723.
99 Am. Dec. 413.
76 Am. Dec. 219.
By the Court,
Hawley, J.:
The appeal in this case is taken "from an ex parte order made in said matter on the eighth day of March, Á. D. 1884, by the judge of said court, setting apart for the use and benefit of said insolvent and his family, as exempt from execution, two gray horses and their harness, and one close carriage; and also from two certain orders made * ' on the thirty-first day of May, A. D. 1884, finally exempting and setting apart said horses, harness, and carriage for the benefit of said insolvent and his family, as exempt from execution; and denying said creditors' motion to vacate and set aside said ex parte order, and sustaining said insolvent's demurrer to said creditors' motion, and denying so much of said assignee's petition for authority to sell the property of said insolvent as prayed for authority to sell said two gray horses and their harness, and said close carriage."
Respondent moves to dismiss this appeal on the ground that it is taken from several different orders, and there is but one undertaking on appeal. This motion must be denied. It was not necessary to specify all the orders and rulings of the court declaring that the property in question was exempt from execution. An appeal from the order made on the thirty-first of May, finally exempting and setting apart said horses, harness, and carriage, would have been sufficient to present the only question involved in this appeal. But the fact that all the rulings of the court upon this question were inserted in the notice of appeal (including some orders that were not appealable) does not change the character of the appeal. All the orders relate to the question whether the property specified is or is not exempt from execution, and they must be treated and considered as one order upon that subject, requiring but one undertaking to perfect the appeal. The record shows: "That said Ezekiel Edgecomb is, and for more than twenty years last past has been, a livery-stable keeper, and for many years prior to the filing of his said petition was engaged in the business of keeping a livery-stable in Carson City, Nevada; that during all of said time he kept numerous horses, carriages, buggies, and other vehicles of his own, suitable for carrying passengers and pleasure-seekers, for the purpose of hiring them or letting them to the public, and also eared for and stabled numerous •horses for other persons; that during said time said Edgecomb has frequently and habitually used said close carriage, and said horses, and their harness, by using and driving them in person for the purpose of carrying persons about the city of Carson, for the purpose of making social visits and calls, and for the purpose of carrying persons to and from funerals and weddings, and for the purpose of carrying persons to and from all kinds of social gatherings, theaters, concerts, and to and from the railroad depot with light baggage; and that he appropriated the proceeds of such labor and earnings by and with said horses and vehicle to the support of himself and family, and thereby habitually earned a part of his living for himself and family."
The statute, under which respondent's claim of exception is based, reads as follows: "The following property shall be exempt from execution: two oxen, two horses, dr two mules, and their harness, and one cart or wagon, by the use of which a cartman, huckster, peddler, teamster, or other laborer habitually earns his living." (1 Comp. L. 1282.)
Is respondent an "other laborer" within the meaning of that term as used in the statute? The legislature evidently intended that the construction to be given to these words should be confined to other laborers ejusdem generis with those named. Language, however general in its form, when used in connection with a particular subject-matter, must be presumed to be used in subordination to that matter, and should be construed and limited accordingly. It is not protended that respondent comes within any class named in the statute. In order to be entitled to the benefits of the exemption law, he must, therefore, show that he was engaged in some business in which, by the use of his horses, harness, and carriage, he habitually earned his living. He has failed to do so. The record shows that his business was that of a livery-stable keeper, which is plainly distinguishable from that in which cartmen, hucksters, peddlers, or teamsters are engaged. If the legislature had intended to include livery-stable keepers, that class would certainly have been named in the statute, as they are as well known, and of an equal or superior class to those named. It is evident that the words "other laborer" were not intended to include the business of livery-stable keepers.
A livery-stable keeper is not a teamster, or entitled to the exemptions of a teamster, simply because he drives his own team in carrying persons around town. Yet, "in common speech, a teamster is one who drives a team; but, in the sense of the statute, every one who drives a team is not necessarily a teamster, nor is he necessarily not a teamster, unless he drives a team continually. In the sense of the statute, one is a teamster who is engaged with his own team or teams in the business of teaming; that is to say, in the business of hauling freight for other parties, for a consideration, by which he habitually supports himself and family, if he has one. While he need not, perhaps, drive his team in person, yet he must be personally engaged in the business of teaming habitually., and for the purpose of making a living by that business. If a carpenter, or other mechanic, who occupies his time in labor at his trade, purchases a team or teams, and also carries on the business of teaming by the employment of others, he does not thereby become a teamster in the sense of the statute. So of the miner, farmer, doctor, and minister" (Brusie v. Griffith, 34 Cal. 306), or livery-stable keeper.
In Dove v. Nunan, the plaintiffs were engaged, in business as coal dealers, and used a team, consisting of two horses and a wagon, by hauling coal and other commodities for other people for hire, and the proceeds therefrom were expended in their support. They also occasionally used the team in hauling coal and wood from their own coal-yard to the place where they retailed the coal. Upon these facts the court said: "The fact that the plaintiffs used the horses and wagon in question as teamsters for hire, and that they expended the money thus received in support of themselves and their families, did not exempt the property from execution. In order to entitle a party to claim as exempt from execution two horses, he must show that he is a cartman, huckster, peddler, teamster, or other laborer, and that he habitually earns his living by the use of such horses." (62 Cal. 400.)
It is a matter of common knowledge that the particular busi ness upon which, respondent relies is incidental to and connected with the general business of livery-stable keepers, and unless all livery-stable keepers are entitled to have two horses and their harness and one wagon exempt, respondent is not entitled to such exemption. His business was that of a livery-stable keeper and nothing else. His character as a livery-stable keeper was not changed by the fact that the team in question was only used for the particular purpose specified, or from the fact that respondent, in person, always drove the team. If respondent had been engaged in a business that entitled him to claim the exemption, the property would be exempt, although the horses and carriage had been occasionally let for hire to other parties, and would also be exempt, although respondent employed other persons to occasionally drive the team.
The rulings of the district court exempting the property from execution are hereby set aside, and the cause remanded to the district court for such further action as may be necessary hi accordance with this opinion.