Williams v. Golden

10 Neb. 432

• Court: Nebraska Supreme Court
• Decided: July 15, 1880
• Status: Published

Opinion

Cobb, J.

The plaintiffs in error make two points:

First, That all the exemption of personal property from forced sale, on execution to which defendant in error was entitled is that provided for by- section 521 of the code, and that the exemption provided for in said section is in lieu of and not in addition to that provided for in section 530. [Gen. Stat., 616, 618.]

Second, That the plaintiffs in error, other than Williams, are not liable, for the reason that there is no sum fixed by law in which constables are required to-give bond, and hence that the bond is void.

As to the first point I do not think that thei’e is room for a reasonable doubt that it was the intention of the legislature, in framing and passing the several sections of the exemption law, to exempt to all debtors the several articles specified and enumerated in section 580 of the code, and in addition thereto to exempt to such debtors as owned no real estate the amount of five hundred dollars in other personal property of the debtor, to be selected by him or by the officer under certain circumstances. Evidently it was.their intention to give -the landless debtor an exemption of personal property in lieu of the more wealthy debtor’s home-, stead exemption. And this could only be done by giving him an exemption in gross in addition to the specific articles to which the other was also entitled, because the articles specifically exempted often, if not generally, exceed in value the sum of five hundred dollars.

As to the second point, the sum or penalty named in the bond is only a limitation upon the extent of the sureties5 liability, and is not necessary to give it force. The statute requires a person elected to the office of constable to give a bond with security for the faithful performance of the duties required of such officer by law, and while the statute is defective in not fixing the amount of the penalty in such bond, yet the courts must give some effect to the said statute, and doing so, I do not think that they can hold that such a bond, given in the absence of extortion, duress, or any kind of unfairness, and with a not unreasonable sum fixed as penalty, is void.

The' judgment of the district court is therefore affirmed.

Judgment aeeirmed.