Newton v. Russian

McCuuuoch, J., (after stating the facts.) Appellant assigns as error the giving of several instructions by the court of its own motion, and the refusal to give nineteen instructions asked by defendant; but, as the bill of exceptions does not contain any of the instructions, they can not be considered on appeal. The bill of exceptions recites that the defendant asked the court to give instructions numbered respectively from one to nineteen, each of which the court refused, and to which the defendant excepted. It also recites that the court, of its own motion, and. over the objection of defendant, gave instructions numbered respectively from one to five. None of the instructions given or refused are set forth in the bill of exceptions or called for therein, but they are copied elsewhere in the transcript. The office of the bill of exceptions is to bring upon the record all matters and proceedings in the trial not already a part of the record in the case, and this may be accomplished either by setting forth the papers or proceedings in extenso, or by a proper call therefor and identification. But where such matters are neither set forth in the bill, nor called for and identified so that.the clerk may set them forth, they do not become a part of the record, and can not be noticed on appeal. It is not sufficient for the bill of exceptions to merely recite the fact that certain instructions, giving the numbers, were given or refused, and the clerk is not thereby authorized to copy in the transcript instructions of corresponding numbers found among the papers. Supreme Lodge K. of P. v. Robbins, 70 Ark. 364; 3 Enc. Pl. & Pr., pp. 431-4; Sanders v. Parrell, 93 Ind. 28. We must, therefore, presume that the jury were properly instructed; and if the testimony was sufficient to warrant the verdict, the judgment must be affirmed. Merchants’ Exchange Co. v. Sanders, ante, p. 16, and cases cited. This is a suit by a wife to recover the homestead of her husband, who had deserted her during their temporary absence therefrom, occasioned by the destruction of the dwelling house by fire — the husband having left the country, .and the property having been attached for his debt after the desertion. Can she maintain the suit against the husband’s creditor, who purchased the property and obtained possession at the sale under execution? Section 3902, Kirby’s Digest, reads as follows: “A debtor’s right of homestead shall not be lost or forfeited by his omission to select and claim it as exempt before the sale thereof on execution, nor by his failure to file a description or schedule of the' same in the recorder’s or clerk’s office; but he may select and claim his homestead after or before its sale on execution, and may set up his right of homestead when suit is brought against him for possession; and if the husband neglects or refuses to make such claim, his wife may intervene and set it up; provided, if the debtor does not reside on his homestead, and is the owner of more land than he is entitled to hold as a homestead, he or his wife, as the case may be, shall select the same before sale. Act March 18, 1887.” In Sidway v. Lawson, 58 Ark. 117, this court, in construing the above act, said: “It vested no additional interest in the wife. The husband could abandon the homestead, and it would become liable to his debts, notwithstanding the act of March 18, 1887.” To the same effect see Farmers’ B. & L. Assn. v. Jones, 68 Ark. 76; Pipkin v. Williams, 57 Ark. 242; Wilmoth v. Gossett, 71 Ark. 594. But in Hall v. Roulston, 70 Ark. 343, which was an ejectment suit by the grantee of the husband against the deserted wife for possession of the homestead, the court held that “where’ a husband wrongfully and without cause deserts his wife, it is a reasonable presumption that he will return to her again, and that the abandonment is not permanent, but temporary;” and that it did not work an abandonment and forfeiture of the wife’s right to hold the homestead. Citing Moore v. Dunning, 29 Ill. 130; Thompson, Hom. & Ex. § 277. The question, therefore, in this case is whether the husband had, before the desertion, abandoned the homestead. If he had not done so, the right of the wife to sue for possession is plain. It is settled by the repeated decisions of this court that a temporary removal and absence from the homestead for the purpose of business, pleasure or health, without actual intention to abandon the same, will not displace the homestead right. Tumlinson v. Swinney, 22 Ark. 400; Euper v. Alkire, 37 Ark. 283; Brown v. Watson, 41 Ark. 309; Robinson v. Swearingen, 55 Ark. 55; Robson v. Hough, 56 Ark. 621; Wilks v. Vaughan, 73 Ark. 174. A fortiori, an enforced temporary absence on account of the destruction of the dwelling house will not operate as an abandonment. Nor will such absence under those circumstances raise a presumption of abandonment, unless continued for such length of time as to negative any intention to return. In Tumlinson v. Swinney, supra, this court held that a temporary' absence from the homestead for the purpose of business will not oust the right, unless the design of permanent abandonment be apparent. The desertion by the husband occurred too short a time after the enforced removal from the homestead, being only a few months,'to raise any presumption of abandonment, and we think the proof was sufficient to justify the jury in finding that there had been no abandonment by the husband. This was the only issue involved. Appellant urges that there was no proof of the value of the lands, and that, the burden being upon the plaintiff, as held in Pace v. Robbins, 67 Ark. 232, before she can recover, to establish the fact that the 120 acres claimed were of less than $2,500 value, she has failed to prove the homestead right. This question was not raised by the answer, which tendered only the issue that the homestead had been abandoned by the husband. The case can not be tried here on issues not raised below. State Mutual Insurance Co. v. Latourette, 71 Ark. 242; Myar v. St. L. S. W. Ry. Co., 71 Ark. 552; Triplett v. Rugby Distilling Co., 66 Ark. 219. Appellant assigns as further error that the court refused to permit him to testify to statement of Jack Russian, the husband, concerning his intention about returning to the homestead. The questions propounded by appellant’s counsel were objectionable in form, and were excluded on that account, and he failed to correct the form of the questions, so as to elicit the testimony which the court held to be competent. The court, in ruling upon the question, said: “State facts, not conclusions or impressions on the part of the witnessand the witness merely replied that “he wasn’t there at all.” We find no error in the proceedings, and the judgment is affirmed.