Nolan, 33 Kan. 28, 5 Pac. 437; Gardner v. King, 37 Kan. 671, 15 Pac. 920; Frey v. Butler, 52 Kan. 722, 35 Pac. 782; Fish v. Street, 27 Kan. 270; Field v. School Dist. 83 Kan. 190, 109 Pac. 775; Mendenhall v. School Dist. 76 Kan. 177, 90 Pac. 773; Missouri River, Ft. S. & G. R. Co. v. Wheaton, 7 Kan. 232; Linvill v. Brown, 9 Kan. App. 747, 60 Pac. 476; Cameron v. Griesa, 74 Kan. 560, 87 Pac. 679; Treat v. Wilson, 4 Kan. App. 586, 46 Pac. 322; Atchison, T. & S. F. R. Co. v. Meyer, 62 Kan. 700, 64 Pac. 597; 23 C. J. § 450; Marks v. Jones, 71 Minn. 136, 73 N. W. 719; 22 Cyc. Injunction, p. 771, b.

Mr. W. B. Washington for appellee. Mason, J., delivered the opinion of the court:

A sheriff, holding an execution against J. W. Wamberg, levied it upon his office furniture, which he claimed to be exempt, as part of the equipment of his business as a real estate agent. Wamberg brought this action against the sheriff to enjoin the sale on that ground. On February 5, 1923, the probate judge granted a restraining order until the next term of court. The defendant filed a motion to set aside the order and demurrers to the petition, an amended petition, and a supplemental petition, and seeks a reversal of the rulings against him by two appeals, which may be considered together.

1. The defendant contends that the plaintiff was not entitled to an injunction because he had an adequate remedy at law, either by replevin, or by an action for damages. There is much apparent and some real difference of opinion whether those legal remedies are sufficiently adequate to prevent a resort to equity. 23 C. J. 561; 25 C. J. 153; 10 R. C. L. 1256. In a note on the subject it is said: "Where the objection to the injunction is that there is a remedy by replevin, trover, damages, or the like, the weight of authority is in favor of granting the injunction." 30 L.R.A. 99.

This language used in an analogous situation is pertinent: "The main ground relied on by the appellant is that the relief sought should

be refused, because the appellee had a plain, adequate, and complete remedy at law, to wit, either the action of trespass or replevin. The answer to this is that the measure of damages in an action of trespass could not have exceeded the value of the property seized, with interest thereon from the date of the seizure; and that the only remedy in an action of replevin would have been limited to a recovery of the property, and damages for its detention, with costs. It does not need argument to show that neither of these actions would afford as complete, prompt, and efficient a remedy for the destruction of the business which, with the goods levied upon, constituted the appellee's entire estate and pecuniary resources, as would be furnished by a court of equity in preventing such an injury." North v. Peters, 138 U. S. 271, 281, 34 L. ed. 936, 939, 11 Sup. Ct. Rep. 346, 348.

as

Where personal property, which is exempt because used by the debtor in earning a living in his vocation, is about to be taken on execution, an action of replevin Injunctionor for damages is against execuobviously not tion sale. complete and effective a remedy as the interference of a court of equity to prevent the threatened illegal act. The necessary delay in the actions at law and the difficulty of measuring the damages with exactness are grounds upon which the preventive relief, which secures to the debtor the very right to which he is entitled

the possession and use of the property-is more efficient. The existence of the legal remedies does not necessarily bar the right to resort to equity. Special circumstances may affect the final determination in a particular case, but in the granting of a temporary orderone preserving an existing condition until a full hearing can be had-the trial court is properly given a wide discretion (Johnson v. Wilson County, 34 Kan. 670, 688, 9 Pac. 384), and a petition for injunction setting out the claims of the execution defendant in general terms may well

be held good against demurrer, leaving the rights of the parties to be finally determined upon a full hearing.

2. The defendant argues that the statute (Gen. Stat. 1915, § 4701) exempting "the necessary tools and instruments of any mechanic, miner or other person, used and kept for the purpose of carrying on his trade or business," does not cover the office furniture of a real estate agent. We hold that under the liberal rule of construction adopted in such

Exemptions-office furniture.

cases, it should be given that effect. It has been held to apply to the safe, cabinet, and table of an abstracter of titles (Davidson v. Sechrist, 28 Kan. 324), and similar clauses are generally construed as applying to office furniture (note in 2 A.L.R. 829).

3. The restraining order is objected to on the ground that it does not state "the reasons for its issuance," as required by § 7149 of the General Statutes of 1915. That section is a part of the Act of 1913 (Laws 1913, chap. 233), "concerning injunctions in certain cases, and regulating the issuance, terms and conditions of the same," and in view of that title and the provisions of the other sections is to be interpreted as relating only to disputes concerning employment.

Injunctionstatutory limitation-construction.

-irregularities in order.

4. Other objections to the order, none of which is well founded, are: Its signature reads "D. R. Mills, Probate Judge pro tem.;" it has no seal attached; the application for it and the supporting affidavit are combined in one document, which sets out the conclusion that the property is exempt, without stating the facts making it so; it was issued without notice; and the bond, although filed by the clerk, was not indorsed with his approval. The generality of the language of the affidavit, and the omission to give notice, were not important in

view of the hearing had on the motion to set the order aside.

5. The original petition was demurred to as failing to state sufficient facts, and also for misjoinder because of a claim for an attorney's fee being included. The demurrer was overruled, but a demurrer to an amended petition petition was sustained with respect to the allegations concerning the attorney's fee, so that the matter of misjoinder became immaterial. The demurrer to the amended petition was for want of facts in each of the several causes of action set out, nothing being said as to misjoinder. Some of the paragraphs of the amended petition were designated as separate causes of action, when they were but portions of the injunction case; others were for damages sustained from the steps already taken. To deny the plaintiff all benefit of the allegations which he mistakenly styled causes of action would be too technical.

The amended petition did not say in so many words that the articles seized were exempt, nor that they were necessary to his business, but said that the defendant levied on the furniture and implements, which were used by him in his business, over his objection that they were exempt. The pleading was defective, but could have left the defendant in no sufficiency. doubt as to the na

-pleading

cution defendant's) office, and, after the granting of the restraining order and the overruling of the motion to set it aside, made return of the original execution and received another, issued at the instance of the judgment plaintiff, whereupon he removed the property (or all of it except a few articles, which may have been treated as exempt) from the plaintiff's office. Additional damages of $2,000 were asked on this account. We think the demurrer to this pleading should have been sustained. The plaintiff's pleadings treated the property as having been actually levied upon under the first execution, and therefore as having been in the possession and control of the sheriff when the second one was issued. They do not allege that the first execution was abandoned. The effect of the second execution was to compel rather than to authorize the sheriff to sell the property, for he could have sold it without a new writ: "In truth, as we shall hereafter show, an officer levying an execution upon personal property is

authorized to proceed to the sale thereof, though after the return of the writ; and when a venditioni exponas issues, commanding such sale, it does not confer additional authority upon the officer, but merely requires him to exercise his authority already existing. Such being the case, the issuing of an alias writ and a sale thereunder of property already levied upon cannot prejudice the defendant, and must be regarded as valid, because it would have been so had no alias whatsoever issued." 1 Freeman, Executions, 3d ed. § 50, p. 231.

I. Introduction, 669.

II. Costly or extensive property, 670. III. Use of property, 670.

IV. Exemption of tools, etc., of an occupation or profession, 670.

[No later decisions herein.]

V. Application to specific chattels, 670.

I. Introduction.

The present annotation is supplemental to that in 2 A.L.R. 818, and 9 A.L.R. 1020, where the earlier cases may be found.

As to what is "stock in trade" within exemption law, see annotation in 9 A.L.R. 1259.

As stated at page 818 of the annotation in 2 A.L.R., the question whether the debtor is within the description of persons, in statutes which limit the exemption to certain persons, is beyond the scope of the

Mont.

present annotation. See, for example, Swanz v. Clark (1924) 229 Pac. 1108, holding that an ophthalmometer and stand, a spectacle trial case, a retinoscope, and spectacle frames belonging to an optometrist were not exempt under a statute exempting to a "mechanic or artisan" "tools or implements necessary to carry on his trade," upon the theory that an optometrist is not a "mechanic" or "artisan" and his business not a "trade." See also Wagner v. Farmers Co-op. Exch. Co. (1920) 147 Minn. 376, 14 A.L.R. 279, 180 N. W. 231, holding that a nonresident is not entitled to claim as exempt his membership in the Chamber of Commerce of Minneapolis "as a tool of his trade, even were it granted that a resident might do so."

11. Costly or extensive property. (Supplementing annotation in 2 A.L.R. 821, and 9 A.L.R. 1020.)

See Burns v. Christianson (1921) 16 Alberta L. R. 394, [1921] 2 West. Week. Rep. 366, 60 D. L. R. 173, infra, V.

III. Use of property. (Supplementing annotation in 2 A.L.R. 825, and 9 A.L.R. 1020.)

As stated at p. 825 of the annotation in 2 A.L.R., the use of the property has been regarded as determinative of the right to exemption in some cases. And see Hurst v. Bruin (1923) 74 Colo. 157, 219 Pac. 779, wherein the court refused to hold the property in question exempt, it not appearing that the tools in question were used in the owner's business.

IV. Exemption of tools, etc., of an occupation or profession,

No later cases herein. For earlier cases, see annotation in 2 A.L.R. 826, and 9 A.L.R. 1020.

V. Application to specific chattels. (Supplementing annotation in 2 A.L.R. 827, and 9 A.L.R. 1020.) Automobile.

(Supplementing annotation in 2 A.L.R. 827.)

Generally, as to exemption of automobiles from seizure for debt, see annotation in 28 A.L.R. 74.

A truck and an automobile owned by a farmer and used by him for general farm purposes, including the marketing of farm produce, have been held not to be farm "tools" or "instruments" within the meaning of the exemption statute of Iowa, but are to be classed as "vehicles," where the statute contains the further classification of "the wagon or other vehicle, etc.," of a farmer as being exempt. Farmers Elevator & Livestock Co. v. Satre (1923) 196 Iowa, 1076, 195 N. W. 1011. Said the court: "Counsel for appellee strenuously insists, and argues with much plausibility, that the truck in question, used by appellee as the evidence shows it was used, constitutes it a tool or instrument reasonably adapted to this farmer's use, and therefore exempt to

may be said with respect to the Ford automobile. In a broad sense, perhaps the wagon, the truck, and the automobile, all three, are farm implements. Were it not for the specific classification in the statute of the 'proper tools, instruments, or books of the debtor, if a farmer,' and a further classification of the wagon or other vehicles, etc.,' the position of appellee would be very convincing. But the statute mentions and classifies separately the proper tools, instruments,' used in the operation of farm business, and the wagon or other vehicle.' Undoubtedly the truck and automobile in question come within the latter classification, and must therefore be considered strictly as vehicles, and not as farm tools. Appellee might claim and hold exempt either the wagon, the truck, or the automobile, but he cannot hold all three of the vehicles as exempt. The statute specifies just what is exempt in the way of a vehicle, by stating, 'the wagon or other vehicle.' However persuasive argument may be to the effect that a truck and an automobile, used as the evidence in the instant case shows such articles were used, may be considered as proper farm tools, the court cannot extend the provisions of the statute to so hold. The statute in plain and clear terms enumerates what is exempt to a farmer in the way of a vehicle, and the automobile and truck in question come under the classification made respecting a vehicle. We are not warranted in saying that the truck and automobile in question, or either of them, should come under the classification of tools and instruments of a farmer, when there is in the statute a specific classification under which they clearly belong. The legislature may, if it sees fit, include within the classification of farm tools a truck or automobile, or both, or may add to the classification of vehicles a truck or automobile, or both; but it is not the province of the court so to do." Substantially to the same effect, it will be noted, was the case of Hammond v. Pickett (1913) Tex. Civ.

App., 158 S. W. 174, holding an automobile belonging to a real estate agent, and used by him in his business as such, a "carriage" within the meaning of the exemption statute of Texas, in which the court said: "It

is clear that the exemption of the automobile cannot be successfully claimed under the subdivision of the article, referred to, that exempts all tools and apparatus belonging to a trade or profession."

In Burns v. Christianson (1921) 16 Alberta L. R. 394, 60 D. L. R. 173, it was held that an automobile of a licensed professional chauffeur was not within a statute exempting "the tools and necessary implements to the extent of $200, used by the execution debtor in the practice of his trade or profession." The ground of the decision is stated by one of the judges as follows: "Taking the section in its ordinary meaning, I cannot think that the legislature, when using the two words 'tools' and 'implements' in the plural, and placing a limitation in value obviously upon a number of articles taken together, intended to include a single but very valuable article in the nature of a conveyance which the debtor uses as a carrier of passengers. Even if the carriage of passengers for hire came within the meaning of the word 'trade,' which I think it does not, I do not think a single valuable chattel, like an automobile, is within the meaning of the expression 'tools and implements.' When the legislature said to a debtor, in substance, 'You may possess and enjoy the tools and implements (in the plural) of your trade up to the value in all of $200, and you cannot be disturbed in their possession by execution,' I cannot believe that it means to say, 'You may acquire a single chattel of three or four, five or ten, times that value, use it as your means of livelihood in conveying passengers, and you shall not be disturbed.' This would exempt steamboats and aeroplanes, when so used."

The reported case (WAMBERG V. HART, ante, 666), it is to be noted, holds that the office furniture of a real estate agent is exempt, as coming within the designation of "the necessary tools and instruments of any mechanic, miner, or other person, used and kept for the purpose of carrying on his trade or business." Likewise, the office furniture of a lawyer, including such items as bookcases, a desk, a filing cabinet, chairs, and rugs, has been held to be exempt, as coming within the designation of "all tools, apparatus, and books belonging to any trade r profession," and the same is true, course, of books belonging to and used by him in his profession. McBrayer v. Cravens (1924) Tex. 265 S. W. 694, reversing upon other grounds (1923) Tex. Civ. App., 255 S. W. 994. Horses.

(Supplementing annotation in 2 A.L.R. 830.)

A horse and rig belonging to a baker and used by him to deliver his bread has been held not to be exempt as tools or utensils used in the exercise of the baker's trade. Lord v. Lessard (1923) 25 Quebec Pr. Rep. 225.

Safe.

(Supplementing annotation in 2 A.L.R. 835.)

An iron safe owned by one engaged in the jewelry business, and used by him for the storage of watches and jewelry, has been held not to be a "tool or apparatus" belonging to the jeweler's trade or profession, so as to be exempt under the Texas statute. Re Kessler (1924) 2 F. (2d) 284 (bankruptcy proceeding). The court said: "The bankrupt mainly relies upon the case of Betz v. Maier (1896) 12 Tex. Civ. App. 219, 33 S. W. 710, court of civil appeals of Texas, for judicial support of his contention here. In that case an iron safe which was used by an insurance agent to store his policies and other papers was held exempt from execution as a tool or appliance under this statute. However, since the decision in the case of Betz v. Maier, there have been a number of cases in which appellate