
    Gaines vs Toles.
    Opinion delivered September 19, 1896.
    
      ptgment In Forcible Entry and Detainer — Exemptions.
    The plaintiff brought suit int unlawful detainer under l 3351 Mansfield’s Digest, executed a bond and obtained a writ of possession under l 3352 of the said Digest. The jury brought in a verdict for the defendant and judgment was lendered against plaintiff and his bondsmen for $100.00 and costs. Held, That the judgment was based on a tort and not on a contract, and the statute exempting certain property from execution where the judgment is based on a contract, does not apply to this judgment and a supersedeas will not be issued to restrict an officer from levying an execution upon exempted property.
    Appeal from the United States Court for the Southern Itrict.
    
      C. B. Kilgore, Judge.
    Henry' Gaines filed a petition íor a writ of mandami to compel J. W. Phillips as clerk of the United States Cou for the Southern District to issue a writ of supersedeas to a execution on a judgment recovered by one Wm. Tol against said Gaines. There was a judgment dismissing t! petition. Gaines appeals.
    Affirmed.
    
      Robert S. West for appellant.
    No one appears for appellee.
   Springer, C. J.

The appellant, Henry Gain brought suit in the United States court, Southern district the Indian Territory, at Ardmore, against William Tol appellee, for unlawful detainer, under section 3351 of Ma field’s Digest. The plaintiff in the suit below (the appell; in this case) executed a bond, and obtained a writ of p session under section 3352 of said digest. On the trial the case the jury brought in a verdict for the defendant, assessed his damages at $100, and judgment was rendej against the plaintiff and his bondsman, Cullis Hawkins, the sum of $100 and for all costs. On the-day of Jal ary, 1896 the appellee, William Toles, caused an executioi] be issued on said judgment. The appellant, after gvv appellee, William Toles, five days’ written notice, filed the clerk of the court below, J. W. Phillips, a schedule all his property, together with the.articles, claimed by as exempt, specified therein, on the 20th day of Janu| 1896, and asked for a supersedeas restraining' the mar¡| from selling any of said property so claimed as exempt der said execution. T-he clerk refused to issue the sul sedeas. On January 22, 1896, appellant filed his petitioi] the court betow, praying for a writ of mandamus to cor 3 clerk to issue the writ of supersedeas as prayed for. . the 30th day of January, 1896, the petition was heard in 3 court below, and denied, and said petition dismissed, ipellant excepted, and brought the cause to this court on peal.

ju|^e|ftnon Tort‘

The counsel for appellant assigns as error the judg-nt of the court to the effect that the plaintiff was not en-ed to any exemption in this case, and that the appli-ion for mandamus be dismissed. It is conceded that the y question involved in this case is this: whether the gment on which the execution was issued is based upon mtract, or upon a tort committed by the appellant. If nded upon a contract, the judgment of the court below uld be reversed; if upon a tort, it should be affirmed, s was not a suit on the contract embraced in the bond. /as an action for unlawful detainer. If the plaintiff had >vered against the defendant, in the suit in the court be- , damages for the unlawful detainer of the premises, ¡ judgment would unquestionably have been founded up-ti tort. But the jury found that the defendant had not i guilty of unlawful detainer, but that the plaintiff had ngfully dispossessed him, and awarded him damages ■efor. The action was based on a tort, and the mere that the judgment was entered against the principal, plaintiff, and his surety on the bond, does not change nature of the demand upon which the judgment was reared. The statutes exempting certain property- from >ution, where the judgment was based on a contract, not apply to cases in which the judgment is based upon wrongful or tortious acts of the defendant in execution, judgment of the court below is affirmed.

Lewis, J., concurs,  