Ragland v. Moore, Trimble & Co.

McCay, Judge. Section 2044 of the Code, under which this application is made, does not require the notice to tide officer to be before the sale. What is the object of the notice? Obviously to prevent the sheriff from paying out the money. The sale [478] takes place independently of the notice, and will take place just the same whether the notice be given or not. The reason of the thing, therefore, would seem only to require the notice before the money is disposed of. The sheriff may pay it out to the plaintiff, or to other fi.. fas. in hand, entitled to it. If he gets the notice he does this at his peril. That, as it seems to us, is the object of the notice. And if so, it is immaterial when the notice is given, if it be in fact given before the money is paid out. We incline to the opinion that this provision, giving the debtor the right to have $500 00 set apart and invested, contemplates that he is insolvent, and that when such an application is made it ought to appear that such is the fact. But did not this appear, prima fade f Here were judgments four or five years old, to the amount of nearly $2,500 00, unsatisfied, and they in controversy over the sum of $750 00, the proceeds of the sale of a town lot that had been set apart as a homestead under the act of 1868. Prima fade, we think this made a case of insolvency. At least it cast the burden of showing that there was other property upon the parties resisting the application. It is plain to us that if there were such other property we would hear of rules against the sheriff for not making the money on the fi. fas. in his hands, and the simple fact that these judgments exist unsatisfied furnishes a fair inference that no such property exists. Judgment reversed.