Larey v. Baker, 85 Ga. 687

Larey v. Baker

85 Ga. 687 | Ga. | 1890

Simmons, Justice.

The facts of this ease will be found in the official report. Under those facts, we think the court erred in refusing to grant a new trial upon the 5th, 6th and 7th grounds 'of the motion. The facts show that a homestead had been set apart to Mrs. Larey as the head of a family, and that a portion of the realty so set apart to her as a homestead had been leased by her to the Bartow Paint & Pulverizing Company for the purpose of mining it for ochre. It was stipulated in the lease contract that if the company failed to work the land, it should pay á stipulated forfeiture. The company did fail to work it, and in its answer to the summous of garnishment served upon it, admitted it was indebted to Mrs. Larey, the claimant, ten dollars as a forfeiture. Under this state of facts, we think the court should have charged the jury as requested in the 5th, 6th and 7th grounds of the motion. Our code, §2026, provides that “All produce, rents or profits arising from homesteads in this State . . shall be exempt from levy and sale,” etc. We think the money in controversy was the profits arising from the homestead estate, just as much so as if the land had been rented by Mrs. *692Larey for a stipulated price in money and the renter had-failed to cultivate the land, for in that case the renter would still owe her the amount of the rent, and such rent would be the profits arising from the homestead. So, when she leased the land to this company, and it agreed to pay a stipulated forfeiture in the event it failed to work it, and it did so fail, she was entitled to the forfeiture, and such forfeiture was as much the profits arising from the homestead estate as if she had rented the land for the purpose of cultivation, or the company had worked it and paid her one dollar per ton as it agreed to do in the lease. As this ruling will finally dispose of the case, it is unnecessary to discuss the other grounds taken in the motion for a new trial.

Baker, the defendant in error, filed a cross-bill of exceptions in which he alleges that he “moved the court to strike the claim interposed for legal insufficiency, and because the same did not meet the requirements of the statute for interposing claims in garnishment cases, which the court refused to do.” The record shows that when the claim was interposed, Baker joined issue thereon and introduced his evidence, and then made his motion to strike the claim. We agree with the court below that this motion came too late. If the motion was a good one, he should have made it before issue was joined, and not have waited until he had introduced his evidence before making it. Furthermore, it does not appear from the record upon what ground he based his motion to strike the claim for “legal insufficiency,” or wherein it would not “meet the requirements of the statute for interposing claims in garnishment cases.” ITe should have been more specific in his objections, and have informed the court upon what ground the claim was'insufficient. He also moved the court, at that stage of the proceeding, for a .judgment. Of course, if the court was right in refusing *693to dismiss the claim, he was also right in refusing to award judgment at that stage of the case. Baker also states in his cross-bill of exceptions that “counsel for claimant tendered as evidence the original homestead papers, and also the 'record of the same in the clerk’s office. To said original homestead and to this record said Baker objected because it was secondary evidence. The court rejected the original evidence (or rather the original homestead papers) and admitted in evidence the record in the clerk’s office. To this ruling said Baker then excepted, now excepts, and assigns the same as error.” We think; the court was wrong in admitting the record from the clerk’s office and rejecting the original homestead papers. He should have admitted the original papers and rejected the record from the clerk’s office, as was decided by this court in the case of Brown v. Driggers, 60 Ga. 114. But as the error was caused by Baker objecting to the original homestead: papers, he ought not to be allowed to take advantage of it. He cannot take a benefit from his own wrong.

The next, error assigned in the cross-bill of exceptions is, that the court charged the jury as follows : “ The record of the homestead of Mrs. Larey, which the court- has allowed to go in evidence before you, is a good homestead.” There is no reason assigned in the bill of exceptions why this charge was erroneous. We have carefully examined the record and fail to find any valid objection to said homestead. It was urged in the argument here that the homestead was invalid because the application for the same was never approved by the ordinary; that only the plat was approved. It is unnecessary, under the law, for the application to be approved by the ordinary. The law requires him to endorse upon the schedule and plat “approved.” The schedule of the personal property was approved by the ordinary, and the plat returned by the surveyor was *694also approved. This was all that was necessary for the ordinary to do under the law. See Code, §2009.

It was also argued here that no notice of the application was ever given to Waitzfelder & Co., the original plaintiffs in fi. fa., and that the homestead was therefore void as to them or persons claiming under them. We have searched the record diligently and cannot find that this point was made in the court below, or that there was any evidence to sustain it if made. There was, therefore, no error in the court giving the charge complained of to the jury.

Judgment reversed as to the original bill of exceptions, and affirmed as to the cross-bill of exceptions.