Rodgers v. Summerlin

Beck, J. Where to the levy of a common-law fi. fa. upon certain realty the defendant in fi. fa. interposed a claim as the head of a family, upon the ground that the property had been set apart to him as a homestead for himself and family, and upon the trial of the issue made by the levy and claim the property levied upon was found subject; and when, subsequently to the verdict finding the property subject, the plaintiff in the fi. fa. is proceeding, by advertising the property for sale, to enforce the execution, and the defendant in the fi. fa. interposes another claim as the head of a family, and from the evidence introduced upon the trial of the issue made by this last claim it appears that at the time of the trial of the first claim case, which resulted in a verdict in favor of the plaintiff in fi. fa., finding the property subject, there was a mistake in the description in the schedule attached to the homestead, the lot of land embraced in the property levied upon being designated by the wrong number in the schedule (though also being described by the boundaries), and that the mistake had been cured subsequently by an amendment to the homestead, but the contest is between the same parties and the claim is based upon a homestead of the same property, the question as to whether the realty is subject or not is res ad judicata; and the court erred in holding otherwise. Judgment reversed. All the Justices concur.