32 Neb. 525 | Neb. | 1891
A firm of traders having obtained a judgment in justice’s court against the relator, and having caused execution to be issued thereon, and placed in the hands of the respondent,
The respondent appeared and made answer to the said writ, in which he alleged that the relator is not, and never has been, entitled to the exemption claimed, in that she is not the head of a family, and prayed to be hence dismissed with his costs.
There was a trial to the court with a finding and judgment for the respondent. The relator brings the cause to this court by petition in error. Five errors are assigned:
Second — That the court erred in forcing the relator to trial and making her show that she was the head of a family and entitled to exemptions.
Third — That the court erred in forcing the relator to trial on the answer.
Fourth — The court erred in refusing to allow the relator the peremptory writ of mandamus.
Fifth — The court erred in rendering judgment against the relator for costs.
The first, second, and third assignments will be considered together.
The relator’s object and purpose in applying to the court and instituting her suit was to establish her right to the relief demanded. Her right to this relief consisted primarily in the fact that she, being a citizen of the state and the head of a family, and not possessed of either lands, town lots, or houses subject to exemption as a homestead under the laws of the state, her personal property within the value of $500 had been taken from her, and was detained upon legal process by the respondent. Doubtless any or all of these facts might be put in issue by the respondent upon his appearance, and those put in issue it was incumbent upon her to prove. Or had the respondent failed to appear at all, it would have become incumbent upon her to prove at least prima fade evidence of each of said facts. But the respondent by appearing and answering, narrowed the issues to the single fact denied by him, to-wit, that the relator is the head of a family.' This fact it was necessary for her to prove. If she has done so, then the trial court erred in refusing to allow the relator the peremptory writ of mandamus, and also erred in rendering judgment against the relator for costs.
There were three witnesses sworn and examined on the part of the relator: Mrs. R. H. Lucas, the relator; R. H.
Upon cross-examination of R. H. Lucas, it appeared that he had resided in Omaha about twenty-five years; that he was in the grocery business in said city for about thirteen years; that he kept a stock of goods of from five to six hundred dollars; that he was broken up by the dishonesty of a partner and sold out the remains of his stock; that he afterwards bought into a livery stable business
There is no contradiction or conflict whatever in the evidence of these witnesses. The respondent offered no evidence. I am of the opinion that the learned court erred in its judgment and decision upon the merits of the case, and that the judgment is absolutely without evidence to sustain it. The judgment of the district court is reversed, and judgment will be rendered in this court for the relator for costs in both courts and a writ of mandamus will be issued in this court as prayed by the relator in the district court.
Judgment accordingly.