Bruce, J.
(after stating the facts as above). The defense of bankruptcy proceedings or of a discharge in bankruptcy is personal to the bankrupt. 5 Cyc. 405; Palmer v. Merrill, 57 Me. 26 ; Moyer v. Dewey, 103 U. S. 301, 26 L. ed. 394 ; Re Burton, 29 Fed. 637. There is nothing in the record that tends to show that the principal debtor ever sought to avoid the attachment proceedings in this case by pleading the proceedings in bankruptcy. It is true he alleges that the principal defendant filed a petition in bankruptcy on the 17th day of January, 1905, and in such proceedings claimed as exempt the identical property for the value of which said action has been instituted, and that in the schedule of property and petition of the said Schuler is listed the claim of the plaintiff, for which claim the plaintiff subsequently secured judgment against the said John Schuler, and that the plaintiff listed and filed in said bankruptcy court the claim for which the said judgment was procured against said John Schuler, and on the 17th day of February, 1905, appeared in said bankruptcy court and proved said claim before Guy L. Wallace, referee in bankruptcy, and that on the 10th day of May, 1905, the property involved in this action was set over by said bankruptcy court to the said John Schuler as and for his exemptions. In the case of Burcell v. Goldstein, 23 N. D. 257, 136 N. W. 243, however, we held that § 67 — f of the Federal bankruptcy act of 1898 (act of July 1, 1898, chap. 541, 30 Stat. at L. 565, U. S. Comp. Stat. 1901, p. 3450) only avoids liens upon property which passes to the trustee in bankruptcy, and over which the bankruptcy court could and has assumed jurisdiction. We further held that, by setting aside the property as exempt, such court will be held to have disclaimed any intention of assuming or of having ever assumed jurisdiction over it, and that it cannot be said to have passed at any time to the trastee in bankruptcy; nor would the fact that on account of such adjudication in bankruptcy a personal judgment cannot be rendered against the defendant in a district court, alter the case or preclude the foreclosure of the lien, as the jurisdiction of the district court is in rem, and not in personam. Under that case and the numerous [202] authorities cited therein, the discovery of the bankruptcy proceedings was a discovery of evidence which was absolutely immaterial, and, even though due diligence in its procurement was shown — which is not the fact, as the petition merely alleges a conclusion of law — no new trial could have been properly based thereon.
This leads us to a consideration of the question as to whether the trial court erred in excluding from the evidence Exhibit A, which is a claim of exemptions served by the wife of the principal defendant, one Katie Schuler, on the 29th day of July, 1905, and something over seven months after the notice of the levy of attachment. The defendant argues that this evidence was competent and material in spite of the fact that § 7124, Rev. Codes 1905, requires such claims to be served within three days after notice of the levy. He states that Katie Schuler had supposed that her husband,' John Schuler, had made claims for his exemptions, — in fact, that she had been so informed by him, and that she did not learn the contrary until the 27th day of July, 1905. He argues that by the statute (§ 7122) the wife is not limited to the three-day period, and may, in case her husband fails to assert the right, serve her claim on behalf of herself and her family within a reasonable time thereafter. He claims that under the peculiar circumstances disclosed by the affidavits, she acted within such reasonable time. He also maintains that in so far as the claim of exemption filed by the original defendant, John Schuler, is concerned, that the statute merely requires that the same shall be served within three days after notice from the officer which is required to be given by § 7124, and that there is no evidence on the trial that that notice had ever been given.
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Bruce, J.
(after stating the facts as above). The defense of bankruptcy proceedings or of a discharge in bankruptcy is personal to the bankrupt. 5 Cyc. 405; Palmer v. Merrill, 57 Me. 26 ; Moyer v. Dewey, 103 U. S. 301, 26 L. ed. 394 ; Re Burton, 29 Fed. 637. There is nothing in the record that tends to show that the principal debtor ever sought to avoid the attachment proceedings in this case by pleading the proceedings in bankruptcy. It is true he alleges that the principal defendant filed a petition in bankruptcy on the 17th day of January, 1905, and in such proceedings claimed as exempt the identical property for the value of which said action has been instituted, and that in the schedule of property and petition of the said Schuler is listed the claim of the plaintiff, for which claim the plaintiff subsequently secured judgment against the said John Schuler, and that the plaintiff listed and filed in said bankruptcy court the claim for which the said judgment was procured against said John Schuler, and on the 17th day of February, 1905, appeared in said bankruptcy court and proved said claim before Guy L. Wallace, referee in bankruptcy, and that on the 10th day of May, 1905, the property involved in this action was set over by said bankruptcy court to the said John Schuler as and for his exemptions. In the case of Burcell v. Goldstein, 23 N. D. 257, 136 N. W. 243, however, we held that § 67 — f of the Federal bankruptcy act of 1898 (act of July 1, 1898, chap. 541, 30 Stat. at L. 565, U. S. Comp. Stat. 1901, p. 3450) only avoids liens upon property which passes to the trustee in bankruptcy, and over which the bankruptcy court could and has assumed jurisdiction. We further held that, by setting aside the property as exempt, such court will be held to have disclaimed any intention of assuming or of having ever assumed jurisdiction over it, and that it cannot be said to have passed at any time to the trastee in bankruptcy; nor would the fact that on account of such adjudication in bankruptcy a personal judgment cannot be rendered against the defendant in a district court, alter the case or preclude the foreclosure of the lien, as the jurisdiction of the district court is in rem, and not in personam. Under that case and the numerous [202] authorities cited therein, the discovery of the bankruptcy proceedings was a discovery of evidence which was absolutely immaterial, and, even though due diligence in its procurement was shown — which is not the fact, as the petition merely alleges a conclusion of law — no new trial could have been properly based thereon.
This leads us to a consideration of the question as to whether the trial court erred in excluding from the evidence Exhibit A, which is a claim of exemptions served by the wife of the principal defendant, one Katie Schuler, on the 29th day of July, 1905, and something over seven months after the notice of the levy of attachment. The defendant argues that this evidence was competent and material in spite of the fact that § 7124, Rev. Codes 1905, requires such claims to be served within three days after notice of the levy. He states that Katie Schuler had supposed that her husband,' John Schuler, had made claims for his exemptions, — in fact, that she had been so informed by him, and that she did not learn the contrary until the 27th day of July, 1905. He argues that by the statute (§ 7122) the wife is not limited to the three-day period, and may, in case her husband fails to assert the right, serve her claim on behalf of herself and her family within a reasonable time thereafter. He claims that under the peculiar circumstances disclosed by the affidavits, she acted within such reasonable time. He also maintains that in so far as the claim of exemption filed by the original defendant, John Schuler, is concerned, that the statute merely requires that the same shall be served within three days after notice from the officer which is required to be given by § 7124, and that there is no evidence on the trial that that notice had ever been given.
As far as the claim of the wife is concerned, counsel for respondent cites § 7122 of the Code, which provides that “if in any case the debtor neglects or refuses, or for any cause fails, to claim the whole or any of the aforesaid exemptions, his wife is entitled to make such claim or demand, and to select and choose the property, to select and designate one of the appraisers, and to do all other acts necessary in the premises the same and with like effect as the debtor himself might do; and if she neglects, refuses, or for any cause fails, so to do, in whole or in part, then one of their children of sixteen years of age or upwards, being a member of the family, may do so in like manner and with like effect.” He calls attention to the case of Noyes v. Belding, [203] •5 S. D. 603, 59 N. W. 1069, in which .the court, in holding that ■a claim by the wife of a homestead exemption made thirty-two days after the expiration of the time allowed to her husband was not too late, said: “The statute requiring the officer to give to the debtor, his attorney, agent, or wife a notice of levy, provides that the debtor, or such other person for him, must claim or demand his exemptions within three days after such notice, and if in any •case the debtor neglect or refuse, or for any cause fail, to claim the whole or any part of said exemptions, his wife is entitled to make such •claim or demand. As the debtor is allowed three days in which to make the claim, it cannot be said that he is in default until the expiration of that time, and no force or effect can be given to the statute authorizing a wife to make the demand in case of a failure in that regard •on the part of the husband, unless she can make the claim subsequent to the expiration of the three days allowed to her husband, as she would not be entitled to exercise the right within the three days, provided the notice of levy had been served upon her husband, and it is conceded to have been so served in the case before us, and not upon the wives. A statute requiring the wife to make the claim or demand forthwith thereafter would doubtless be construed to mean within a reasonable time after the failure of the husband to demand his exemptions, and should it appear that the wives of Knowles and Marshman exercised their respective rights within a reasonable time after the failure of their husbands so to do, we would be reluctant, in the absence of any statutory limitation as to them, to reverse this case upon that ground, should it appear that no one has been prejudiced by the delay. . . . The undisputed evidence shows that the notice of levy was served upon Knowles and Marshman on the 27th day of September, consequently the time within which they could claim property as exempt expired on the 30th of that month. The claim of the wives was dated November 2d following, and the appraisement thereunder seems to have been made sometime during the succeeding February or March. It will be noticed that during the month the exemption claim of Mrs. Knowles and Mrs. Marshman was prepared by their attorneys, William G. Knowles commenced a suit involving the ownership of the attached property against the sheriff, and this suit was determined in favor of the sheriff some time during the month of January, the following year, and the [204] attachment debtors, Knowles and Marshman immediately thereafter-put in claims for exemptions, concerning which there seems to have-been some contention, in which all the interested parties appeared to-have participated. Upon all the facts and circumstances disclosed by the record, and in view of the fact that no steps had been taken towards, the sale of the attached property, and in the absence of any claim that plaintiffs were prejudiced by the delay, we are disposed to hold that, the claim acted upon by the appraisers was made within a reasonable-time.” This case is clearly in point. The defendant in the case at bar offers to prove that, though the claim of the wife, Katie Schuler, for exemptions was not served until the 29th day of July, 1905, she had supposed that her husband, John Schuler, had filed a claim for exemptions, — in fact, had been informed by him that he had done so, and did not learn of the contrary until the 27th day of July, 1905. It is to be noticed that although § 7124, Rev. Codes 1905, provides that if' the claim is made by the husband it shall be made within three days after notice, § 7122, which allows the wife to assert such claim on the-failure of her husband, places no limitation whatever upon the time-within which it can be made. It would seem that under the holding of the South Dakota court, as far as the wife is concerned the claim of exemptions was in time, and we are convinced by the logic and reasoning of that case. We hold, in short, that the claim of the wife will not be considered too late provided it is served within a reasonable time after discovering that the husband has not filed such claim, and if the delay has not interfered with vested and material rights. We also hold that under the facts of this case the claim of the wife was filed within, such reasonable time. Chesney v. Francisco, 12 Neb. 626, 12 N. W. 94 ; Robinson v. Hughes, 117 Ind. 293, 3 L.R.A. 383, 10 Am. St. Rep. 45, 20 N. E. 220 ; Rice v. Nolan, 33 Kan. 28, 5 Pac. 437 ; Daniels v. Hamilton, 52 Ala. 105 ; Thompson, Homestead & Exemption, 809 ; State ex rel. Fulkerson v. Emmerson, 74 Mo. 607.
But it is argued “that the exemptions were not the wife’s exemptions, but were the husband’s exemptions which she was permitted to make for him in case he failed to make the claim; that since the affidavit of Katie Schuler, which appears in this record, states that her husband had informed her that he had claimed said property as exempt, it is manifest that the husband was in a position where he could have done
[205] ¡so had he desired to do it, and that since no excuse such as the law would require is made or shown, justifying a delay of seven months in the filing of the claim of exemptions, such delay was an indication to the plaintiff in the attachment suit, and should have been an indication to the sheriff, that the defendant in that attachment had waived his right to claim the property as exempt. We do not, however, think there is any force in this contention. The law does not look upon the right to exemptions as a personal right of the husband, or even as being given to the husband at all. It is a family right, rather than a personal right. There is no right of exemptions allowed to a bachelor who is not the head of a family. “Husbands there have been, and may again be,” says Mr. Freeman in his work on Executions, § 212, “who are inattentive to their wives and children or wilfully inflict upon them misery and want. The family of such a man, more than of any other, is within the spirit and the necessities of exemption laws, and it is a ¡strange and perverse interpretation of these laws which denies their benefit, even temporarily, to a family whose head is for the moment .absent from them, or who, though not absent, is indifferent to their fate.” The family idea, in short, is everywhere to be found in the ¡authorities. In Ohio, for instance, the statute declared that “it shall be lawful for any resident of Ohio, being the head of a family, and not the owner of a homestead, to hold exempt from levy and sale personal property to be selected by such person, his agent, or attorney, at any time before sale, not exceeding $500 in value, in addition to the amount of chattel property now by law exempted.” An action was brought by a wife, her husband joining, to recover damages sustained by the refusal of a constable to set off property as exempt from execution on her demand. Why the demand was not made by the husband and the action prosecuted solely in his name did not appear. The court, however, construed the statute as made to protect the family, and therefore saw no reason why the wife might not make the demand for the benefit •of herself and children, as she was their natural guardian. See Regan v. Zeeb, 28 Ohio St. 487 ; Freeman, Executions, § 212 ; Chesney v. Franisco, 12 Neb. 626, 12 N. W. 94 ; Robinson v. Hughes, 117 Ind. 293, 3 L.R.A. 383, 10 Am. St. Rep. 45, 20 N. E. 220 ; Freehling v. Bresnahan, 61 Mich. 540, 1 Am. St. Rep. 617, 28 N. W. 531 ; Frazier v. Syas, 10 Neb. 115, 35 Am. Rep. 466, 4 N. W. 934 ; Taylor v. Worrel, [206] 4 Legal Gaz. 401 ; Mitchler v. Helfrinh, 30 Phila. Leg. Int. 216 ; Waugh v. Burket, 3 Grant Cas. 319 ; Wilson v. McElroy, 32 Pa. 82 ; McCarthy’s Appeal, 68 Pa. 217 ; Metzler’s Appeal, 73 Pa. 368 ; Freeman, Executions, § 212.
The order granting the new trial is affirmed.
Goss, J., being disqualified, did not participate.