41 Neb. 73 | Neb. | 1894
On the 24th day of February, 1890, the appellees filed a petition in the district court of Holt county, alleging that H. C. McEvony, of appellants, was sheriff of Holt county, Nebraska; the Holt County Bank, a corporation doing business at O’Neill, Nebraska; that on or about June 10, l>89p, the bank commenced an action against Sarah A. •Q,uigley. in .the district court of Holt county, and procured an order of attachment to be issued therein, which was delivered to the sheriff, McEvony, who, on the 11th day of Juke, 1890, levied the writ on lots 6, 7, and 8, in block 26j-O’Neill,' Nebraska; that subsequently judgment was rendered in the action, in favor of the bank, in the sum of $950, and on the--day of-, A. D. 1890, an order of-sale was issued .and delivered to the sheriff to sell the above described premises for the satisfaction of the judgr merit-; that the petitioners are now, and have, been,-hus
We will first notice the contention of appellants, that the proceeding by motion to dissolve the attachment and the matters therein decided were such as to constitute an adjudication of the homestead rights of the Quigleys in the premises in controversy, and consequently a bar to the bringing of this suit. The motion to dissolve the attachment was made on the grounds that the order of attachment was wrongfully sued out, want of jurisdiction of the court to grant the writ, the untruth or falsity of the allegation of non-residence of Sarah A. Quigley, the defendant in the attachment suit, and that the property levied upon was the homestead of the defendants in the case. The main propositions to be decided at such a hearing are, first, the sufficiency of the affidavit; second, the falsity of the charge in the affidavit filed to obtain the issuance of the writ of attachment. Whatever matters may be in some cases necessarily or properly heard and determined, we do not think it is competent or proper practice, where the writ is levied upon real estate belonging to the debtor, to allow the homestead character of the property to be drawn in question as one of the grounds
This brings us to the main contentions in the case, which may be briefly stated as follows:
First — -That the notice given to the sheriff, that the defendants in the attachment suit claimed the premises to be exempt as a homestead, was not served on the offioer at the time of the levy, as required by law, but some thirty days afterwards, and was not served by the husband, but was: served by the wife, and hence was ineffective.
Second — That the defendants (appellees) failed to prove that the property was not worth more than $2,000; that it was incumbent upon them to do this, and having failed, their proof was incomplete and not sufficient to support the decree in their favor.
Third — The evidence does not show that they were occupying the premises levied upon, or that it was their home, but on the contrary does show that they had removed to another city and state, and abandoned' these premises as a home.
The sections of our statute (see Comp. Stats., 1893, pp. 500, 501) governing the subject of homestead, in so far as a discussion of it will be necessary in this case, are as fob-lows :
“Section 1. A homestead not exceeding in value $2,000, consisting of the dwelling house in which the claimant resides, and its appurtenances, and the land on which the same is situated, not exceeding 160 acres of land, to be selected by the owner thereof, and not in any incorporated city or village, or instead thereof, at the option of the claimant, a quantity of contiguous land not exceeding two lots within any incorporated city or village shall be exempt from judgment ■ liens and from execution or forced sale, except as in this chapter provided.
‘‘See. 2. If the claimant be married, the homestead may be selected from the separate property of the husband, Ojs
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“Sec. 5. When an execution for the enforcement of a judgment obtained in a case not within the classes enumerated in section 3 is levied upon the lands or tenements of a head of a family, such head of a family may notify the officer at the time of making the levy of what he regards as his homestead, with a description thereof, within the limits above prescribed, and the remainder alone shall be subject to such levy, except as otherwise provided in this chapter. The judgment creditor may thereupon apply to the district court in the county in which the homestead is situated, for the appointment of persons to appraise the value thereof.
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“Sec. 15. The phrase ‘head of a family/ as used in this chapter, includes within its meaning: First — The husband, when the claimant is a married person.” * * *
It is first claimed that inasmuch as the statute requires the notice to be given at the time of the levy, and that its service in this case was thirty days subsequent to the time of the levy, it had no effect; and further, that the law requires it to be served by the “ head of the family,” and that the head of the family in this case was the husband, and the notice served in this case was signed by the wife, it was not such a notice as could bind the sheriff or the creditor, or affect the attachment, or call for any such action on the part of the creditors, as is contemplated by section 5 above quoted; and the further argument is advanced, to which it will probably be better to give attention here than elsewhere, that there is nothing to show that the wife never gave her consent to the selection of the property as a homestead. The evidence shows that the Quigleys went to Sioux City on or about August, 1889; that Sarah A. Quigley, when she returned to O’Neill, about the middle of the month of July of the following year, saw the attachment notice in the papers and thus for the first time became aware of the
We will next discuss the claim that it devolved upon the appellees to prove the value of the premises which they allege is their homestead, and that having failed so to
The third contention of the appellants is that the evidence introduced in the case was not of such a character as to warrant the court in finding that the premises constituted the homestead of the appellees at the time (lie officer levied the writ of attachment upon them; but, on the contrary, the testimony clearly disclosed that the Quigleys had removed to, and were living at the time of the levy in, Sioux City, Iowa, and had abandoned these premises as a. home and homestead. The testimony in this case may, we think, fairly be said to establish, that on or about August, 1889, the appellee, being then engaged in the millinery business in O’Neill, and occupying these premises as a home, became dissatisfied with the returns from her business and concluded to remove to Sioux City for the purpose of disposing of the stock of goods, and did go to Sioux City, rented a store room, and engaged in business there;
Affirmed.