Briggs v. McCullough

By the Court, Crockett, J.: Briggs obtained a money judgment against McCullough and others, on which an execution was duly issued. After proper proceedings in that behalf, McCullough was ordered to appear before a referee, appointed by the Court for that purpose, to be examined touching his property. In the course of his examination before the referee he admitted that he had deposited with the Pacific Mutual Life Insurance Company of California the sum of two thousand nine hundred and thirty-three dollars in gold coin, and took from said company an agreement, called an “ endowment policy,” whereby the company agreed to pay him or his assigns, on the 6th day of July, 1878, (or sooner if he should die,) the sum of three thousand five hundred dollars in United States gold coin, together with such dividends as his deposit should earn. He also admitted that said policy was in his possession and was his property; and thereupon the referee made an order that McCullough deliver the policy to the Sheriff, as property to be applied on the judgment of Briggs. McCullough refused to obey the order, which fact was reported by the referee to the Court which rendered the judgment; and thereupon the Court cited McCullough to show cause why he should not be punished for a contempt, and on the rule to show cause, (in obedience to which McCullough had appeared,) the Court, after hearing the matter, found the facts to he as already stated, and adjudged McCullough to he guilty of a contempt, and entered an order that he be imprisoned, without hail, until he obeyed and complied with the order of the referee. From this order McCullough has appealed.

At the hearing, a motion was made to dismiss the appeal; hut without expressing any opinion on this point, we deem it best to dispose of the case on its merits. The counsel for McCullough claim that the policy of insurance in question is exempt from execution, under an Act of the Legislature of March 28th, 1868, (Stats. 1868, p. 500,) which provides [550]that “no money, benefit, right, privilege, or immunity accruing, or in any manner whatever growing out of any life insurance on the life of the debtor, made in any insurance company incorporated under the laws of this State, shall be subject to levy under attachment, execution, or under any original mesne or final process whatever against such debtor, or to be taken, sequestered, or reached by any proceeding supplementary to execution, or other like proceeding, provided, however, this exemption shall not extend beyond such moneys, benefits, rights, privileges, and immunities as have been or might have been secured by the payment of an annual premium, not exceeding five hundred dollars.”