Mutual Benefit Building Ass'n v. Tanner

Simmons, Chief Justice. Under the facts disclosed by the record, the court erred in overruling the demurrer. The application for exemption attached as an exhibit to the petition of the plaintiff, does not show out of whose property the exemption was sought. It has been uniformly held by this court, that where the application is by the wife, it must show that the exemption is sought out of property belonging to the husband. The application is equally defective in not allegingthat her husband refused to apply for the exemption, or that he acquiesced in her application, or that he had notice of the application. In the case of Linch v. McIntyre, 78 Ga. 209, upon which the judge below based his decision, although it appears that the application did not state that the husband refused to apply, it does appear that he had notice of the application and acquiesced therein. In the present case it does not appear that the husband had any notice or knowledge of the proceeding or that he afterwards acquired knowledge and acquiesced in her action. If her application for the exemption had alleged that it was •her husband’s property and that he refused to apply for the exemption, this would have been sufficient to put him upon notice that she was seeking an exemption out 340 of his property, and if he did not appear before the ordinary and make objection, his acquiescence Avould be presumed, as was held in Blacker v. Dunlop, 93 Ga. 819. A man ought to have some sort of notice before he is deprived of his property or of any right he may have therein. Judgment reversed.