115 Ga. 684 | Ga. | 1902
There was tried in a justice’s court in Floyd county the case of Rounsaville & Brother against Evans. The trial resulted in a verdict for the plaintiff, and the defendant filed a petition to the superior court, seeking a writ of certiorari. This petition made the following allegations: On August 8,1901,in the justice’s court designated, the stated case was tried, the issue arising on the foreclosure of a mortgage on personal property, and an illegality thereto. The mortgage was dated January 17,1899, and was given to secure three notes of seventy-five dollars each, described in the petition. It was foreclosed on March 4, 1901, and was levied in the same month on a horse and mule which are also described. To the levy of the execution on foreclosure, the defendant filed an ille
Inasmuch as we reverse the judgment in this case, and the trial judge predicated that judgment on the ruling made in Carter v. Peoples National Bank, 109 Ga. 573, we refer to that case at the outset of this opinion, for the purpose of ascertaining what principle, of law bearing on the facts of the case now presented was determined. We find that the only ruling with reference to the bankruptcy laws which was there made was that “A plea interposed to a proceeding to foreclose a mortgage on land, in a superior court of this State, that, pending the proceedings to foreclose, the mortgagor was adjudicated a bankrupt, and praying that such proceedings be stayed for the period of twelve months or until the
The petition for certiorari alleged that the verdict in the justice’s court was contrary to law and without evidence to support it. It appeared that the property levied on had been set apart in the bankruptcy court as exempt. So, then, while the lien of the plaintiff in fi. fa. was not affected by the discharge in bankruptcy given to Evans, the property to which the lien attached had been set apart to him as an exemption authorized by the laws of Georgia; and assuming, as we do, that Evans was in proper position to claim and have set apart an exemption — because we presume that it would otherwise not have been so set apart, — we know of no reason why the exemption was not good as against the lien.. Nothing appears in the record tending to show that the right of exemption was waived in favor of the creditor. Had this fact appeared, an altogether different question would have heen presented. If Evans had a valid exemption not subject to the lien of Rounsaville, the petition for certiorari should have been sanctioned, not because his discharge, affected the mortgage lien, but because Rounsaville could not enforce his lien against the exemption which had been granted him in the bankruptcy court. It was ruled in the case of Ross v. Worsham, 65 Ga. 624, that, “ When in the bankrupt court an exemption is granted by the judge or register, such exemption is no more subject to levy and sale than if it had been set apart by the ordinary having jurisdiction thereof.” See Collier v. Simpson, 74 Ga. 697; Broach v. Powell, 79 Ga. 79; Barrett v. Durham, 80 Ga; 336; Dozier v. Williams, 84 Ga. 303; Brady v. Brady, 71 Ga. 71. Eor aught that appears, as we have said, the lien, while not affected by the bankruptcy proceeding, could not be enforced against the homestead property. There was nothing in the petition for certiorari showing that it could be. Hence the petition should have been sanctioned, and the writ issued, and, on the facts set out in the record, the judgment of the justice of the peace should have been reversed.
Judgment reversed.