Langford v. Driver

70 Ga. 588 | Ga. | 1883

Crawford, Justice.

The error complained of in this case is the overruling a motion for a new trial.

1. The first ground of that motion is because the judge rejected the papers and proceedings offered in evidence to show that a homestead had been set apart in the land claimed. The ground up on which the j udge held the papers nadmissible, appears to be that the application therefor was made by Mrs. Isabella M. Langford, the wife of the defendant in fi. fa., and did not set forth therein out of whose land the same was to he taken.

According to the ruling of this court in the case of Wilder & Son vs. Frederick, 67 Ga., 669, not yet reported, the judge below properly rejected this evidence. In that case it was held that, where a married woman made application for homestead, the record should show out of whose land it was to be carved, so that the creditors might be notified that their interests were attacked. And further, that, whilst in all cases it was best to specify out of whose lands the same was to be taken, yet where it was to be carved out of some other person’s than that of the applicant, unless it was .so stated, that it would be invalid.

The application in this case being by the wife for “exemption of personalty and homestead, should have specified definitely out of whose lands the homestead was to be carved, and out of whose personalty the exemption was to be allowed. Instead, however, of this, her petition states, that the schedule which she sets forth is “ a correct schedule of the personal and real estate owned and possessed by her said husband and herself.” From this, it will be seen the utter impossibility of ascertaining whether she owned only a few articles of the personalty, or a portion of the realty, or all of the realty and none of the personalty. It was clearly no compliance with the requirements of the law, and was therefore invalid.

2. The second ground of error assigned in the motion for a new trial is in allowing certain evidence of the plaintiff in fi.fa. to be admitted, over the objection of claimant’s counsel. It not appearing upon what ground the objection was made, it is impossible for this court to determine whether the same was or was not properly rejected. The grounds upon which counsel ask the court to exclude testimony from the jury should always be precisely stated, so that the judge below and this court would be able to understand and rule correctly thereon.

3. The third is that the judge refused to suppress the interrogatories of the plaintiff in ft. fa., on the ground that in his answer to the 8th cross-interrogatory it appeared that he had a memorandum book, and failed to attach it to his answers.

It is not shown at what time this motion was made, and as the objection went to the execution, it should have been made in writing, and notice given before the trial; it was certainly too late to suppress upon that ground after the same had commenced. Errors must be shown to be corrected. 44 Ga., 278.

4. The fourth ground of the motion is, in substance, that the judge refused to charge the jury that the acknowledgment of service by a defendant on a declaration, before the same is filed in office, will not authorize a judgment against him, unless it is shown by evidence that he appeared and defended the suit, or knew that it was proceeding against him previous to the judgment. We do not think that there is any legal merit in this ground.

5. The fifth refers to the evidence touching the fourth, and falls with it, as the defendant was bound by his acknowledgment of service on the declaration, and was entitled to no further notice before judgment.

6. The sixth and last ground is that the jury found against, the law, and against the evidence, and contrary to justice.

We do not think that this ground is well taken.

Judgment affirmed.