6 Kan. App. 558 | Kan. Ct. App. | 1897
This is an action for an injunction, commenced in the District Court of Montgomery County, Kansas, by Benjamin F. White, as plaintiff, against F. C. Moses, Sheriff, and C. J. Corbin, as defendants. The petition alleges that the defendants are about to sell under execution a certain eighty acres of land which is the homestead of said White and his family. The defendant filed a motion to dissolve the temporary injunction, and the court heard such motion, which was supported by affidavits, and counter affidavits were heard in opposition to the motion. The motion was overruled, and the cause was submitted upon the evidence offered in support of the motion. The court rendered judgment against the defendants, making the temporary injunction perpetual, and for costs. The defendants bring the case here for review.
The conclusion of law made by the court is as follows :
“That the said eighty acres of land described in plaintiff’s petition was and is the homestead of said plaintiff and his family, and as such is exempt from forced sale under the execution levied thereon.”
The judgment restrained the Sheriff and judgment creditor from selling the homestead under the execution.
The findings of fact show that the defendant in error and his family resided upon the land described in the petition until the only house thereon was destroyed by fire, and “that at all times since moving from said farm and at the time of so moving it has been and now is the intention of the plaintiff to return with his family to and occupy said farm as a place of residence as soon as he shall be able to build a suitable house thereon.”
It is immaterial whether the evidence in this case supports the findings of fact, as we are precluded from
The judgment of the District Court will be affirmed.