109 Ga. 296 | Ga. | 1899
W. E. Marcrum obtained a judgment against JR. L. Washington for the principal sum of $137, at the January term, 1898, of the city court of Columbus, on which execution issued and was levied upon the south half of lot number ten in block thirty-nine in the city of Columbus. A claim was interposed by R. L. Washington as head of a family. It was shown that on the 10th of July, 1897, Washington filed a petition and schedule under section 2040 of the Code of 1892 (section 2866 of the Code of 1895). In his schedule was set out the south half of lot number ten in block thirty-nine in said city, and he prayed that the same, and the- articles of personal property enumerated, might be set aside as a homestead exemption. The petition was sworn to, filed, and approved by the ordinary of Muscogee county on the 10th day of July, 1897. It appeared from the evidence that the consideration of the debt on which the judgment was founded was an open account. There had been a previous levy of this execution on the same lot in March, 1899, which was dismissed on the 20th of March, 1899. The plaintiff in fi. fa. told the sheriff he could not make the affidavit required by the code as a protection to a levying officer in seizing homestead property, but gave him an indemnifying bond, and the levy was made. When these facts were shown, the claimant moved to dismiss the levy, on the grounds, first, that-the homestead exemption of personalty could not be attacked collaterally in the superior court, but that the schedule having been approved by the ordinary, that officer alone had
By section 2866 of the Civil Code, provision is made for setting apart another and a different character of homestead, which is colloquially termed the “ pony homestead.” In having an exemption made under this provision of the law, it is only necessary that the party seeking the same shall make out a schedule of the property claimed to be exempt. No application is required, nor is it necessary that there shall be any publication of the filing of such schedule, nor any notice to creditors. This schedule is required by the act to be recorded by the ordinary. One of the items which may be exempted in this manner is real estate, in a city, not exceeding $500 in value; but in order to exempt it, it must on the application of the debtor be platted by the county surveyor and returned to the ordinary. If a creditor disputes the propriety of the survey or the value of the improvements, it becomes the duty of the ordinary, on the application of any creditor, to appoint appraisers to value such real estate. In Banks v. McLeod, 63 Ga. 162, it was ruled that the appointment of appraisers in such a case is but preliminary to judicial action. In this case it does not appear that appraisers were appointed to value the real estate described in the schedule. In Davis v. Lumpkin, 106 Ga. 585, it was said in the opinion that in recording the schedule of property and the plat of the realty the duties of the ordinary were purely clerical. Such proceedings bear no resemblance to a suit. No provision is made for hearing and determining in a judicial way the merits of the case — no notice of any hearing in relation thereto is prescribed no judgment is required, and no discretion is invoked to determine any right. It is obvious, therefore, that the proceedings designated by the statute to be held can not have the effect of a judgment