Horton v. Summers

Jackson, Justice. Summers & Middlebrooks obtained judgment against Horton and garnisheed Stephenson. Stephenson answered that he held funds in his hands which arose from the sale of lands in the possession, when sold, of Horton. Horton claimed the fund as the head of his family as being the proceeds of the sale of homestead property, and dissolved the garnishment by giving bond and security under section 3541 of the Code. An issue was made up under section 3542, as to whom the money belonged, whether to Horton individually as defendant in the execution, or to Horton as the head of his family, representing the homestead. On that issue the claimant offered in-evidence the homestead papers showing that the land had been set apart to him as the head of a family for their homestead. The court ruled the testimony inadmissible, and the claimant excepted. 1. The grounds on which the homestead papers were ruled out appear to have been : first, that the claim affidavit was not properly made out, inasmuch as the claimant did not set out the names or character of his family therein; and secondly, because the homestead papers themselves did not show their names or what sort of family it was that claimant had. In respect to the first ground, the claim was in the name of Horton as head of his family, and to the effect [304] that he claimed the money as proceeds of sale of homestead, and the papers showed that he petitioned for and had the homestead set apart to himself for his family, as their head. We think the claim affidavit sufficient. 2. In respect to the homestead papers, it is enough to say that they were granted or issued prior to any law requiring the character of family or their names to be set out, and that the petition shows that the homestead was applied for under the constitution and act of 1868. The case is therefore covered in respect to this point by the case of Elizabeth Cowart vs. Leonard Page, 59 Ga., 235. So that we think the superior court erred in withholding the homestead papers from the jury. See also 41 Ga., 196; 51 Ga., 817. Inasmuch as the other errors are assigned upon motions and amendments offered consequent upon these papers being rejected, it becomes wholly unnecessary to consider them, as in our judgment the court erred in so ruling as to make them necessary. Judgment reversed.