Langley v. Finnall

[232]

SMITH, J.

The suit was originally brought by the plaintiff, as trustee of her mother, Mrs. Mary E. Langley, against the Glens Falls Insurance Company to recover $650, due to Mrs. Langley as beneficiary under a policy of insurance of certain household furniture and family wearing apparel belonging to her; but on affidavit of the original defendant, under section 386 of the Code of Civil Procedure, and payment of the amount claimed into court, the present defendants, who had garnisheed the amount due, were substituted in place of the original defendant. Judgment was afterward rendered against the corporation defendant and the defendant Walker, who now appeal.

It is admitted that the insured property was exempt from execution under the provisions of section 690 of the Code of Civil Procedure, and the question involved is, whether— under the circumstances of the case—the money received upon the policy of insurance is likewise exempt. On this question, the authorities of other states are somewhat conflicting, but the weight of authority seems to be for the affirmative of the question. (Freeman on Executions, sec. 235; 12 Am. & Eng. Ency. of Law, 152;

Puget Sound etc. Co.

v.

Jeffs,

11 Wash. 466, [48 Am. St. Rep. 885, 39 Pac. 962].) This, we think, is the better

opinion;

and it is supported by the decision of the supreme court in

Houghton

v.

Lee,

50 Cal. 101, where it was held, with regard to money received from insurance on the homestead and household furniture, “that the sum due from the insurance company was not subject to garnishment by a creditor of the husband”; or, as otherwise expressed, “that money due from an insurance company for indemnity for loss of the homestead residence by fire, retains the character of the premises destroyed, and is not subject to execution. ’ ’ (Freeman on Executions, sec. 235,