106 Ga. 582 | Ga. | 1899
Mattie L. Davis brought her petition alleging that on June 7, 1879, she as the wife of Vincent Davis had applied to the ordinary and had set apart for her benefit and for the benefit of the family of Vincent Davis certain of his property under sections 2040 et seq. of the Code of 1873. (Civil Code,
In our opinion the demurrer was properly sustained. The code provides that every debtor who is the head of a family, or “if he refuses” his wife, may have certain property set apart as exempt from levy and sale. Civil Code, §§2866, 2867. In the case of Dunagan v. Stadler, 101 Ga. 474, it was held that the ordinary, when he approved the schedule and plat required in an application for the constitutional homestead as provided in sections 2827 et seq. of the Civil Code, acted ás a court of general jurisdiction; and hence that it would be presumed, unless the contrary appeared, that he had before him sufficient facts and evidence to authorize the setting apart of the homestead. The reasons which brought the court to this conclusion are fully set forth in the opinion of Mr. Justice Little in that
The act of December 23, 1822, which was the origin of the law now contained in these sections, provided that certain personal property of every debtor should be exempt from levy and sale. It was further provided that in cases where any debtor was entitled to the benefit of the exemption it should be the duty of the officer levying the execution against him to make out a schedule of the exempted articles and return the same to the clerk of the inferior court, whose duty it should be to record the same in a book kept by him for that purpose. Nothing else was required to be done, but as soon as the schedule was recorded the property vested in the inferior court for the benefit of the family of the debtor so long as he should remain insolvent. Cobb’s Dig. 385. This law with various amendments passed from time to time, one of which added an exemption of realty, is contained in sections 2013 et seq. of the Code of 1863. By section 2014 of that Code it was provided that when any debtor refused to seek the benefit of the exemption allowed in the preceding section, his wife, or some person acting as her next friend, might have the exemption allowed by making out a schedule and description of the property claimed to be exempt and returning the same to the clerk of the inferior court, who should record the same in a book kept for that purpose. It was provided by section 2015, that whenever an application for exemption was made by an insolvent debtor, the county surveyor should lay off the land allowed to the debtor’s family and make a plat of the same, which should be returned to, and recorded by, the clerk of the inferior court. Up to this point it will be seen that the inferior court as a court passed upon no question connected with
It will thus be seen that the ordinary, in recording the schedule of the property and the plat of the realty of an insolvent debtor, took the place of the clerk of the inferior court, and that his duty in this respect was purely clerical. When, however, any creditor should appear and “dispute the propriety of the survey or the value of the improvements,” the ordinary sat in^ the place of the inferior court to hear and pass upon the objections raised. See Bangs v. McLeod, 63 Ga. 162. The provisions of the Code of 1863 in relation to these matters are car‘ried forward without substantial change into sections 2040 et seq. of the Code of 1882, and are now embraced in sections 2866 et seq. of the Civil Code. The judicial functions of the ordinary, as has been stated, do not begin until some objection is raised to the survey or the value of the improvements. It
Judgment affirmed.