Ann. Cas. 695; Henderson v. Lockett, 157 Ky. 366, 163 S. W. 199; Lames v. Armstrong, 49 L.R.A. (N.S.) 691 and note, 162 Iowa, 327, 144 N. W. 1, Ann. Cas. 1916B, 511; Kimball v. Jones, 41 Minn. 318, 43 N. W. 74; Parker v. Sweet, 60 Tex. Civ. App. 10, 127 S. W. 881; Diocese of Trenton v. Toman, 74 N. J. Eq. 702, 70 Atl. 606; Hammond v. Pickett, Tex. Civ. App. S. W. 174; Patten v. Sturgeon, 130 C. C. A. 505, 214 Fed. 65; Luce v. Hassam, 76 Vt. 450, 58 Atl. 725; Baker v. Fall River, 187 Mass. 53, 72 N. E. 336; Syck v. Duluth Street R. Co. 146 Minn. 118, 177 N. W. 944; Berg v. Baldwin, 31 Minn. 541, 18 N. W. 821.

158

Brown, Ch. J., delivered the opinion of the court:

Action in claim and delivery for the possession of an automobile, or its value, in which plaintiff had judgment and defendant appealed.

The material facts are not in dispute. Defendant Welnitz, on December 5, 1918, recovered a judgment against plaintiff before a justice of the peace in the sum of $79.94. Execution was duly issued thereon and delivered to defendant Redmond, a constable, for collection and enforcement. The officer levied upon the automobile in question, and in the due course of procedure sold the same as provided by law in such cases. Plaintiff, the execution debtor, claimed the automobile as exempt under the provisions of Gen. Stat. 1913, § 7951, subdivision 6, and before the sale demanded a return thereof to him. The constable refused to recognize the demand, or the exemption right so claimed, and sold the automobile as stated, applying the proceeds on the execution, less costs. The sale occurred on April 8, 1919. The action to recover the automobile was predicated, according to the allegations of the complaint, solely on the claim of exemption. The trial court sustained the claim, expressly finding that the automobile was exempt, and awarded judgment in plaintiff's favor for its value, together with the value of the use thereof subsequent to the execution sale.

In addition to the alleged exemp

tion right, plaintiff at the trial made the further contention that the judgment of the justice on which the execution was issued was void for want of jurisdiction; the precise point being that the summons in the action was not served as required by law. The trial court overruled the point and received the judgment in evidence over the objection of plaintiff.

The statute under which plaintiff predicates his claim of exemption, subdivision 6 of § 7951, Gen. Stat. 1913, provides, among other things, that one "wagon, cart or dray" shall be exempt from the claims of creditors and not subject to levy and sale on execution against the owner. The statute has been before the court in other litigation, and the word "wagon," as found in the above-quoted clause, was construed in one case to include a light open buggy, and in another to include a two-seated upholstered carriage, within the meaning and intent of the law. Allen v. Coates, 29 Minn. 46, 11 N. W. 132; Kimball v. Jones, 41 Minn. 318, 43 N. W. 74. It was involved again in Shadewald v. Phillips, 72 Minn. 520, 75 N. W. 717, where the court declined to extend the rule of the previous deci sions to include a bicycle, the court remarking, speaking through Mr. Justice Mitchell, that the Allen and Kimball Cases had gone far enough, and the bicycle was held not a wagon Exemptions— within the purpose

automobile.

of the statute. We think, after careful consideration of the question, that the automobile should receive the same treatment.

The original exemption statute on the subject, enacted many years ago, made use of the word "vehicle" in this particular connection. Rev. Stat. 1851, subdivision 9 of 100, chapter 71. But there was a change in the law by the Act of August 12, 1858 (Comp. Stat. 1849-1858, chapter 61, subdivision 6, § 99), and the words "wagon, cart or dray" substituted for the word "vehicle." As so changed the statute has come

down to the present day without other modification. In construing it we have only to inquire as to the legislative intent. In that there seems no particular difficulty. At the time of the enactment of the statute, and when carried into the Revision of 1866 in its present form, the automobile was neither known nor even anticipated in the dreams of the layman or most fanciful and resourceful lawmaker. And although statutes couched in general terms, creating rights and liabilities in respect to known and existing facts and conditions, are often construed to apply to and embrace somewhat dissimilar yet analogous facts or conditions subsequently arising and coming into bearing (Johnson v. Starrett, 127 Minn. 138, L.R.A.1915B, 708, 149 N. W. 6; State ex rel. Minneapolis v. St. Paul, M. & M. R. Co. 98 Minn. 380, 28 L.R.A. (N.S.) 298, 120 Am. St. Rep. 581, 108 N. W. 261, 8 Ann. Cas. 1047), we discover no sufficient basis for the conclusion that the automobile is so related in character

automobile.

and general use to -character of the wagon as to come within the exemption purposes of this statute. The wagon is made use of by the owner in furtherance of his occupation and as a necessary instrumentality or agency in the conduct of the same; the farmer, the drayman, and others engaged in carting and hauling commodities for hire, from which he earns his living and supports those dependent upon him. The automobile is not of that character, nor adapted for purposes of the kind. Its predominating element is that of a pleasure vehicle, not necessarily perhaps a differentiating fact, and is owned and possessed by those who pay their debts as well as by those who do not. Its operation upon the public streets and highways is often of such a character as to endanger the lives and safety of third persons, a situation not found in the use of the wagon or buggy drawn by horses, and a declaration that it is exempt

under the statute from levy or sale at the suit of one so injured, or at the suit of general creditors, should come from the legislature, rather than by judicial construction of a statute enacted in 1858, when such instrumentalities and harmful agencies were wholly unknown. Doherty v. Ayer, 197 Mass. 241, 14 L.R.A. (N.S.) 816, 125 Am. St. Rep. 355, 83 N. E. 677; Com. v. Goldman, 205 Mass. 400, 91 N. E. 392.

The authorities on the subject are not in full harmony, though perhaps no substantial conflict will be found when the decisions of the different courts are viewed in the light and purpose of the particular statutes involved and construed. They are collected and cited in Berry on Automobiles, 3d ed. § 1439, and Huddy on Automobiles, §§ 8-11. We are cited to no case involving an exemption statute like that of this state, wherein it has been held that the automobile comes within the class of vehicles commonly known. as wagons; though several of the cited cases classify it with the carriage or vehicle. Prater v. Riechman, 135 Tenn. 485, 187 S. W. 305; United States v. One Automobile (D. C.) 237 Fed. 891; Mallory v. Saratoga Lake Bridge Co. 53 Misc. 446, 104 N. Y. Supp. 1025. In Lames v. Armstrong, 162 Iowa, 327, 49 L.R.A. (N.S.) 691, 144 N. W. 1, Ann. Cas. 1916B, 511, cited and relied upon by plaintiff, the decision turned on the particular language of the Iowa statute, which exempts a wagon "or other vehicle." That decision would sustain plaintiff had our statute remained as originally enacted. But the amendment, substituting for "vehicle" the more restricted expression of "wagon, cart or dray," indicates a legislative intent to limit the scope of the law, which we should not extend by construction.

2. The second contention of plaintiff, namely, that the judgment on which the execution was issued is void for want of jurisdiction, therefore that the execution is no protection to the officer, is not sustained.

Executionprotection to officer.

It is well-settled law in this state and elsewhere that an execution issued by a court of competent jurisdiction, regular and fair on its face, fully protects the officer who in compliance with its commands levies upon the property of the execution debtor. Orr v. Box, 22 Minn. 485; Johnson v. Randall, 74 Minn. 44, 76 N. W. 791; Baker v. Sheehan, 29 Minn. 235, 12 N. W. 704; Ingraham v. Booton, 117 Minn. 105, 134 N. W. 505, Ann. Cas. 1913D, 212; 3 Dunnell's Dig. 8743. Where the writ appears regular in all respects, the officer is not required to make inquiry into the sufficiency of the prior proceedings. The execution in this case was issued by a court of competent jurisdiction, in proper form, and contained no suggestion of defects or irregularities in the judgment. Defendant Redmond has, therefore, a full and perfect defense to the action, since the automobile levied upon was not exempt.

It is also clear that defendant Welnitz, the judgment creditor, has a complete defense to the contention that the judgment is void. The attack upon the judgment and its validity is collateral and not direct. It was rendered and entered by the justice on December 5, 1918, and has since remained unchallenged of record. The justice had jurisdiction of the subject-matter, and the docket entries recite a due service of the summons. Under Gen. Stat. 1913, § 7564, the judgment being a matter of record for more than two years, the jurisdiction of the justice "over the parties and subject-matter" is presumed. The presumption, as against a collateral attack, is conclusive. Vaule

Judgmentjustice's courtvalidity.

court of general jurisdiction, and includes the fact of due service of the summons. Vaule v. Miller, 64 Minn. 485, 67 N. W. 540. A justice court summons under certain circumstances may be served by a private person. Gen. Stat. 1913, § 7515. If it be assumed that such was the service in the case at bar, though the record does not affirmatively show the fact, we are bound under the rule of the presumption stated to further assume that it was authorized by the order of the justice as provided by that statute. The fact, as against collateral attack, need not be recited in the judgment, and the failure to indorse the authority on the back of the summons, as required by the statute, would at most constitute an irregularity, and not a jurisdictional defect. The absence of the order from the files is not fatal. Vaule v. Miller, supra; Ellegaard v. Haukaas, 72 Minn. 246, 75 N. W. 128; Herrick v. Butler, 30 Minn. 156, 14 N. W. 794; 2 Notes to Minn. Cases, 371. The judgment is therefore immune from the indirect attack here made. 2 Dunnell's Dig. 5317. The learned trial court properly ignored evidence de hors the record offered by plaintiff for that purpose.

In that view of the case it becomes unnecessary to consider the question of the validity of chapter 170, Laws 1917 (Gen. Stat. Supp. 1917, § 5765), in so far as it authorizes the service of a justice court summons by a private person; the contention being that the matter of such a service is not within the title of the act. We do not consider the point.

Judgment reversed.

NOTE.

Exemption of automobiles from seizure for debt is the subject of the annotation following SPANGLER V. CORLESS, post, 74.

The facts are stated in the opinion Mr. D. W. Moffat, for appellants: The automobile in question was not exempt from execution.

Crown Laundry & Cleaning Co. v. Cameron, 39 Cal. App. 617, 179 Pac. 525; Lindquist v. Clayton, 54 Utah, 79, 179 Pac. 655; State v. Montello Salt Co. 34 Utah, 459, 98 Pac. 549; Reese v. Judges of District Ct. 52 Utah, 520, 175 Pac. 601; Keybers v. McComber, 67 Cal. 395, 7 Pac. 838; Murphy v. Harris, 77 Cal. 194, 19 Pac. 377.

Messrs. Rich, Rich, & Roberts for respondent.

of the court.

from the defendant Corless, sheriff of Salt Lake county, state of Utah, in pursuance of a levy and execution, one Studebaker automobile, 1917, for the sum of $200; that said purchase was made in pursuance of an execution duly issued out of the justice's court in and for Murray precinct, county of Salt Lake, state of Utah, issued by A. A. Biorn, justice of the peace, which said execution was given under his hand on the 14th day of August, 1917, due

Plaintiff brought suit in the district court of Salt Lake county county against John S. Corless and the Miller-Cahoon Company, a corporation, for the value of an automobile levied upon and sold by John S. Corless, then sheriff of Salt Lake county. It is averred in the complaint that plaintiff owned the automobile at the time of its seizure by defendant Corless, and that plaintiff, a regularly licensed and practising physician in the state of Utah, used the car in making his professional visits as a physician and surgeon. As an affirmative defense the Miller-Cahoon Company alleged in its answer that in September, 1917, plaintiff purchased

said execution, and which said execution was issued upon a valid and subsisting judgment out of said court in which the plaintiff herein, H. B. Spangler, was the judgment debtor. A separate answer was filed by defendant Corless. The case was tried before a jury, who returned a verdict in favor of plaintiff and against defendants. From the judgment entered upon the verdict defendants appeal.

In its charge to the jury the court said: "If you believe from a preponderance of the evidence that the automobile in question was in fact used at the time of the levy under the execution herein by the plaintiff, H. B. Spangler, as a physician and surgeon in making his profes

sional visits, then, as a matter of law, said automobile was a vehicle and equipment exempt from execution under the provisions of said statute and was exempt from execution, and any levy upon and sale thereof by defendants would constitute an unlawful conversion of said automobile by said defendants for which plaintiff would be entitled to recover damages."

defendants

To this instruction excepted, and now assign it as error on appeal, so that the vital question in this case is whether an automobile used by a physician or surgeon in making his professional visits is exempt from execution.

The statute (Comp. Laws 1917, § 6925, subd. 6) provides that "two oxen, two horses, or two mules, and their harness; and a cart and wagon; one dray or truck, by the use of which a cartman, drayman, truckman, huckster, peddler, hackman, teamster, or other laborer habitually earns his living; and one horse, with vehicle and harness, or other equipments, used by a physician, surgeon, or minister of the Gospel, in making his professional visits," shall be and are exempt from execution.

Appellants' counsel cites Crown Laundry & Cleaning Co. v. Cameron, 39 Cal. App. 617, 179 Pac. 525, decided by the district court of appeals, second district, California, in which the following language of the statute of that state specifying what property in certain cases shall be exempt from execution was construed: "Two horses, two oxen or two mules, and their harness, and one cart or wagon, one dray or truck, one coupé, one hack or carriage, for one or two horses, by the use of which a cartman, drayman, truckman, huckster, peddler, hackman, teamster, or other laborer habitually earns his living..

After quoting from the statute as above, the court says: "Clearly it appears to us that a motor-driven vehicle is not a cart, wagon, dray, truck, coupé, hack, or carriage, as those terms are used in the section.

The section plainly says that such exempt vehicles are vehicles which may be drawn by 'one or two horses.' If the legislature intended that a motor vehicle should be exempt from attachment, we think that it would have so declared in plain terms, [and that] for the courts to add to the statute any articles not enumerated would in effect be judicial legislation."

The reason given by the California court does not seem convincing to us. While automobiles were unknown when the Utah statute was first enacted, the intent of the legislature was, nevertheless, to exempt the means of conveyance used by the physician in making his professional calls. An automobile is a vehicle. As stated by the court in Lames v. Armstrong, 162 Iowa, 327, 49 L.R.A. (N.S.) 691, 144 N. W. 1, Ann. Cas. 1916B, 511: "An automobile is a vehicle within this law.

That it is a vehicle there can

be no doubt, and that the motive power is gasolene instead of a horse or horses is not material under the exemption law."

An automobile is as essential to the physician now as a horse and buggy were in the past. In these days an automobile is his only practical means of conveyance. If, then, the exemption stat- Exemptionute is liberally con- physician's strued, the conclu- automobile. sion is not far-fetched that its purpose is to exempt the physician's means of conveyance when calling upon his patients.

The authorities on this subject are not in harmony. They are collated in Berry, Automobiles, 3d ed. § 1439, and Huddy, Automobiles, §§ 8-11.

During the oral argument it was suggested by appellants' counsel that, if an automobile were held to be exempt, a physician with clamoring creditors could use a $5,000 machine machine and defy his creditors. The same thing would be true if the physician had a $5,000 carriage, silver-mounted harness, and a horse worth as much more. But the val