107 Ga. 65 | Ga. | 1899
The Wegman Piano Company brought suit in the city court of Macon against E. D. Irvine, alleging in its petition that on the 15th day of October, 1883, Irvine had set apart to him, as the head of a family consisting of his mother and infant brother, an exemption of personalty ; that the-proceeds arising from a sale of the exempted property were invested by Irvine as head of a family in a certain stock of
The suit by the Wegman Piano Company against Irvine was-an effort to render the homestead estate liable for a debt on which, it was claimed in the petition, the law authorized a judgment condemning the homestead property. It was evidently the intention of the pleader to bring a suit under the provisions of section 3202 et seq. of the Civil Code, declaring the way in which suits against trust estates should be brought. The failure to set out the names of all the beneficiaries, and the informal' way in which the property of the homestead estate was described, are defects which would be amendable before, and which would be cured by, a judgment in the case. Civil Code,, §5365; Artope v. Barker, 74 Ga. 462. Especially is this true: where the judgment sets up a special lien upon the property and the same is described therein with sufficient certainty to-enable the levying officer to locate and seize it. When judgment was rendered in the case, the court had before it a petition alleging that there was a homestead estate, some of the beneficiaries being named, and a claim that under the law the homestead estate could be charged with the payment of plaintiff’s debt. In order for the court to render a judgment in favor of the plaintiff in such a case, it was necessary that it. should decide, not only that there was a homestead estate, but that the debt of the plaintiff belonged to that class of debts-which the law authorized to be enforced by judgment against estates of this character. Such being the case, if the court-had before it a person authorized by law to represent the homestead estate, the judgment would be conclusive upon all questions which were necessarily to be determined in order to render the judgment. Irvine, the head of the family, had an oppor
Judgment reversed.