
    ANDERSON, Respondent, v. BRUFLAT, Sheriff, Appellant.
    (167 N. W. 397.)
    (File No. 4298.
    Opinion filed May 1, 1918.
    Rehearing denied June 1, 1918.)
    1. Mandamus — Exemption, Claim of by Debtor’s Wife — Possession, ■ Right to Remedy, Mandamus as Exclusive.
    Mandamus is the proper legal remedy for protection of the right to exemptions of personalty, where a defendant sheriff unlawfully withholds exempted property, possession of which as exempt property has been duly demanded by the wife of defendant in the attachment under Code Civ. Ptoc., Secs. 346 and 347, granting certain additional exemptions to a debtor who is head of a family; this as against the contention (1) .that mandamus will not lie because plaintiff had no other plain, etc., remedy at law, and (2) because she had not established her legal right to possession, and (3) because the acts sought to he compelled are discretionary and. quasi-judicial, not ministerial, in nature. So held, it appearing that the attachment debt was not incurred for property obtained under false pretenses, nor for laborer’s or mechanic’s wages, for necessaries of life, for physician services, nor for purchase price of the property claimed as exempt; it not appearing that debtor was in the act of absconding, .etc:; the appraisement showing the property claimed to be less than $750 in value.
    2. Exemptions — Policy of Law — Liberal Construction — Mandamus as Remedy.
    Our exemption law, being básed upon considerations of sound public policy, was designed for benefit of debtor and family, and the statute should he liberally construed. So held, in approving of the remedy of mandamus 'to recover possession of exempt personalty unlawfully held by a sheriff, as against the claim of plaintiff, debtor’s wife.
    3. Same — Return of Property on Debtor’s Demand — Duty of Sheriff.
    After claim for exemption has been. made, and where it is clear and certain that the property levied upon by defendant sheriff is exempt, it is his duty to immediately deliver it to debtor, on the ground and for the reason that such property is not liable to execution from the moment it appears the same is exempt, since if debtor were compelled to bring replevin, or conversion action to recover the property or its value, debtor would he deprived of the statutory benefits, through expense of litigation and time expended.
    ■4. Appeals — Error—Sufficiency of Evidence — No Motion for ' New Trial, Effect. > ■ ■
    Where no motion for. new trial was made, , sufficiency of evidence to sustain findings will not be considered on appeal,
    ' 5. Appeals — Error—Evidence, Failure to Object, or- Move for New Trial — Evidence, re Findings, Presumption),
    
      Where the record on appeal was that affidavits and other files and. records were submitted to trial court without objection, it will be presumed upon appeal, in absenca of motion for new trial, and nothing appearing to contrary, that findings, were supported by sufficient evidence.
    Appeal frota Circuit Court, HamMni 'County: Hon. Cari, G-Sherwood, Judge.
    Proceeding in mandamius ¡by Hannah Aiderson, aagikist Ben Binuflaifc, as Sheriff olf Hamlin Cohn'ty, to recovar -possession of alleged' exempt property of .plaintiff’s husband from defendant, who heldl same under attachment. From, a judgment granting a peremptory writ commanding Idlefanidlanit to deliver the property to plaintiff, defendant appeals.
    Affirmed!.
    
      Linstrom & Bentlvm, for Appellant.
    
      M. I. Russell, for Respondent.
    (i) To point cine subd. i, of the opinion, Appellant oiteldr Code Oiiv. P'roe. Sec. 765; Oliver v. Willson, 8 N. D. 590; So N. W. 757; County .Comlmilssiioniersi v. Cavanaugh, 3 Dale. 325. To subd. 3; 'Code Civ. Brtoc. Seos: 764, 361-5; 18 R. C. L. 119, 116; Hainitz v. Mlouliton, 7 So. Dak. 272; 64 N. W. 135.
    Respondent cited: Meyer v. Sheriff, (S. D.) 68 N. W., 310; Mlillil'erke v. Reliley, Sheriff, et al, (S. D:) 141 N. W., 136; Slbatt ex rel S'coville v. Wilson, (N!eh.) 48 N. W: 147; Sec. 357, Code 'Civ. Pnce.
   McCOY, J.

This appeal is from a judgment granting peremptory wirit of mandamus cotamiandling appellant as sheriff to turn over certain personal • property 'to respondent, which property consisted almost entirely of household gofcds and kitchen furniture tiliiereto'flare levied upon under arid! ¡by virtue of a warrant of attachment against the husband of respondent.

The respondent claimed said property as exempt from levy under sections. 346 and 347 of thie Oode of Civil Proveedme. The respondent anldl her husband were and hiad been residents of this state for miainy years. Thie debt upon which the attachment was issued was1 not incurred -for property obtained under false pretenses!, nor for laboreras or meehlanic’s' wages., nor for necessaries1 of life, nlolr foir physician's, services, nor for the purchase price of any of said property claimed to be exempt. It also appears thiat the said diebtor .wais not in the act of absconding or removing from the state with s'aiidl property. Upon appraisement it was' ascertained! .that said 'property was of value less' than $750, and being of .tihie value of about $148. It alisb appears itflnati respondent,’» husband failed amid refused upon notice to claim s'aiildi property as exempt oir to s'dletet a- person to act as appraiser, anidl that respondent a® the wife of saiiidi debtor made sudr claim for exemption and designated a person ito act as such appraiser in accordance w-itih the Statute. After such appraisemWet anidl .alscertalinmient of the value icf said property, respondent demanded) thaJb defendant, as sheriff, turn over and deliver the same to her, which appellant refused anidl neglected sio to do; and thereupon respondent instituted such mainldlamiuis; procedure. It is the contention of appellant that maoidamirs will not lie undler tlie circumstances of this case because it does' not appear that respondent has not established her legal right Itloi the possession of the property; and' also becatHsle the alctis sought to be compelled by mandamus' are discretionary and quasi judicial in nature and not ministerial. We are of the view that each and all of these contentions of appellant are not well grounded. This -court in the -case of Meyer v. Beaver, 9 S. D. 168, 68 N. W. 310, held that mandamus was a proper remedy under -circumstances very similar to those in this case. In that case the court saidi:

“Our exemption law, -basied upon considerations. of sound public policy, was designed for tire benefit of toe debtor and his family, and the entire statute upon Ithie subject sbo-ulMi be considered and liberally construed.”

After claim' foir exemption- has been'maldie, and where it -is absolutely clear and certain, a® in ithi-s case, that the -property levied- upon i® exempt, it -is the duty of the sheriff -or other officer having the process to imim-ediiateity deliver the property -to the debtor -daiming sludh exemption, on the ground anidl for the reason that such property is not at all liable to- execution from the moment it is maldie to appear that the sarnie is exempt. If a sheriff or other officer were permitted! to still hold' possession of the property 'in spite o-f -the claim and fact that it wais .exempt, anidl ignore his duty to return tihie same to- the debtor, the entire piurplotee 'and effect of the eexm-ptiion ’law would be rendered nugatory aind of no 'benefit to the debtor. A debtor, if he w’ére compelled to bring replevin, or conversion, action in the courts to recover the property or tire value thereof, especially where the vailue dotes molt exceed that in this Case, 'the itiiim'e required' antdl expenses elf litigation- woullldl entirely c-omis-umie the value of the property, andi result in depriving the debtor oif the ’benefits sought to be secured to ihiiimi Iby the -exemption -statute. This seemis -to be the view beffid by oitlhe-r courts. State v. Gardner, 32 Wash. 550, 73 Pac. 690, 98 Am. St. Rep. 658.

No motion.' fldr new tri-ail appears- to have been- made. In the absentee of a mdtiioni for new ’trial- the sufficiency of t-he evidente to ■ sustain the findings of the trial oo-urt will not be co-nsideredl o-n appeal. It appears that affidavits arid! other files and records were before the court fldr ©omstidleraltioni, -and' so- far as appears from the record' 00 appeal', such affidavits, files, andi records were 'Submitted as evidence -without -objection. Under these circumstances in the absence of motion! for new trial and nothing appearing to- the 'Contrary, it will -be • .presumed that the findings were- supported by suffidianit 'evidence.

-Plnidiinig rid error in the record, the judgment appealed from is affirmed.  