125 Ga. 149 | Ga. | 1906
Hirsch Brothers & Company foreclosed a mortgage on personalty, executed to them by C. B. Stinson. At the time of the foreclosure the mortgagees filed with the sheriff an affidavit that the debt upon which the execution was founded was one from which a homestead is not exempt, and that j;he mortgagee had no sufficient property upon which the fi. fa. could be levied, except the homestead property. When the mortgage fi. fa. and this affidavit were placed in the hands of the sheriff, he levied on certain property, including “100 bushels of corn, more or less, in the crib,” and
The act of the ordinary in receiving and recording a schedule of property sought to be exempted under the provisions of the Civil Code, §§2866 et seq., is ministerial only. Marcrum v. Washington, 109 Ga. 296. The scheme of the law with reference to the
What has been above said in no way conflicts with the decision rendered in the ease of Hardin v. McCord, 72 Ga. 239, where an amendment was allowed in a proceeding before the court of ordinary to set apart a homestead under the constitution of 1868, and it was held that the court had power to pass on the amendment and allow it even after a judgment approving the homestead had been rendered. A “constitutional homestead” can only be obtained in a regular proceeding instituted in the court of ordinary after due notice to creditors, and the order of the ordinary approving the setting apart of the homestead is a judgment of a court of competent jurisdiction and can not be collaterally attacked by any one affected by legal notice of the proceeding. Marcrum v. Washington, 109 Ga. 298-299. There is no provision of law for amending a claim of -exemption asserted by filing a schedule of property subject to
Judgment affirmed.