Sparks v. Shelnutt

99 Ga. 629 | Ga. | 1896

Lumpkin, J.

1. A married woman having the care and support of her dependent daughters, though not the head of a family, is, under the present constitution, entitled to an exemption from levy aind sale of property belonging to her separate estate. Johnson v. Little, 90 Ga. 781.

November 2, 1896. Argued at the last term.

Gertiorari. Before Judge Harris. Carroll superior court. October term, 1895.

An execution in favor of N. Shelnutt against M. J. & 1VI. B. Sparks, based on a judgment of April 19, 1894, was levied on 1,500 pounds of cotton in the field unpicked, as the property of defendants in fi. fa. Mrs. M. P. Sparks, for herself and her two minor children Luna -and Ada, interposed a claim, which was tried before a jury in a magistrate’s court, and there was a verdict finding the property subject. By certiorari claimant alleged that the verdict was contrary to the law and the evidence. The only issue passed on by the superior court-, and conceded to be the only and controlling -issue, was the validity of the homestead hereinafter mentioned. The certiorari was overruled, and claimant excepted.

Upon the trial before the jury plaintiff put in evidence the execution and levy, and evidence 'that the property levied upon was in the possession of the defendants in fi. fa. at the time of the levy. Claimant put -in evidence her petition for homestead. This petition set out that petitioner is the wife of Moses Sparks, is a citizen of Carroll county (where the application was made); that her husband refused to apply for a homestead; that she had two minor children, Luna sixteen years old, and Ada thirteen years old; that neither she nor her husband had any real estate, but desired to have exempted the personal property embraced in a schedule attached, belonging to her husband and herself; that this schedule contained a minute and accurate description of all the personal property belonging to her and her husband, and another schedule attached contained a correct list of the names of. post-offices of the creditors of herself and her husband. Among other things in the schedule of property was the item 3600 pounds seed-cotton, 1200 picked out and 2400 pounds growing in the field, cultivated this year by Moses and Martha P. Sparks. The affidavit made by the applicant stated that the property all belonged to her, and that she did not personally owe anybody except the creditors whose names appeared on the schedule of creditors and whose post-offices were correctly given. Also, affidavit of M. J. Sparks, that he had given notice in writing personally to all but one of these creditors; and the written statement of the ordinary that notice was published and written notice mailed to the other creditor as required by law. Also, an amendment to the petition for homestead, in which it was stated that the minor children, notwithstanding they lived with petitioner and her husband, are indigent and dependent upon petitioner for a support, by reason of the physical weakness of 'her husband, which renders him almost unable to do physical labor, and such labor is nearly all that he can do; that all the property mentioned in the schedule belongs to petitioner and not to her husband. This amendment was made the day that the application was granted, November 12, 1894. Mrs. Sparks testified that the cotton levied upon was part of the 3600 pounds of cotton mentioned in the schedule.

2. The exemption in the present case was valid, and the court erred in holding otherwise. Judgment reversed.

Reese <& J ones, for plaintiff in error.