Culver v. Tappan & Merritt

Lumpkin, P. J. The only question with which we are called upon to deal in the present case is whether or not there was sufficient -evidence to sustain- the verdict of which the plaintiff in error m,ade complaint -in a motion for a new trial. The issue in contro [527] versy was whether certain chattels were subject to seizure as the property of one Culver, or were exempt therefrom as the product or increment of exempted personalty. It was not contended by the claimant, Mrs. Culver, that the particular property in dispute was actually set apart and exempted, but her insistence was that this property was purchased with the proceeds of articles which had been exempted, or that it had come into the possession of Culver, the head of the family, as the result of his’labor exerted in connection with the use and management of personalty so set apart. We are aware that this court has gone a considerable length in holding that property acquired by the head of a family in either of the ways above indicated should be treated as exempted property and therefore not liable to seizure under process against him. As instances in point, see Wade v. Weslow, 62 Ga. 562, and Johnson v. Franklin, 63 Ga. 378. Many others might be cited; Inthepresent case, however, we are of the opinion, and so rule, that the claimant failed to bring her case within the principle for which she contended. It was incumbent upon her to show affirmatively that the articles in question were obtained in one or the other of the manners stated. This the evidence offered in her behalf signally failed to do. It did not clearly appear either that any exempted personalty was exchanged for, or the proceeds thereof used in purchasing, the property in controversy, or that it could in any fair sense be regarded as the fruits of labor exerted by the head of the family in the prosecution o’f which he was husbanding, using, or consuming the exempted property so as to produce profits which could be fairly regarded as standing in the place of personalty which had been set apart. We therefore hold that the trial judge did not err in refusing to set the verdict aside. Judgment affirmed. All the Justices' concurring.