McAlister v. Robins

McCulloch, C. J. Appellants sued appellee before a justice of the peace in Benton County on account for debt, and caused an order of general attachment to be issued and levied on household goods owned by appellee, who appeared and filed a schedule of her property, claiming the attached property to be exempt from seizure. The justice of the peace refused to allow the claim of exemption, and appellee prayed an appeal to the circuit court, and within the time prescribed by statute filed affidavit and bond for appeal. A transcript of the proceedings was filed in the circuit court, and appellant moved to dismiss on the ground that the transcript failed to show that an appeal had been granted by the justice of the peace. The motion was overruled, and the court, after hearing the mat-schedule and oral testimony, allowed the claim of and ordered supersedeas. j^tion to dismiss was properly overruled, for appellee j^as required in order to obtain an appeal by filing ^affidavit, and she was entitled to an appeal as a ¡it. Wynn v. Garland, 11 Ark. 302; Rapley v. 80; Townsend v. Timmons, 44 Ark. 482. fee provides that an appeal shall not be disLsions or informalities in the docket of a justice, |ourt may, by rule or attachment, require the |jfc the same or to allow an appeal where he has bin the filing of the affidavit. Kirby's Digest, Id 4675. of residence is largely one of intention, as 5ts and circumstances. And, notwithstanding appetSWlFpreparing to remove from the State, the court was warranted in finding from the evidence that she was still a resident of the State and entitled to exemptions. Savage v. Gazola, 80 Ark. 249; Gebhart v. Merchant, 84 Ark. 359. Merely an intention to remove from the State, or even preparations to leave, do not deprive a person of the right to exemptions. Winslow v. Benedict, 70 Ill. 120; Herzfield v. Beasley, 106 Ala. 447; Anthony, A. C. & Co. v. Wade, 1 Bush (Ky.) 110; Stirman v. Smith, 8 Ky. Law Rep. 781; Bonnell v. Dunn, 28 N. J. Law 153; Stafford v. Mills, 57 N. J. Law 570; Ballinger v. Lantier, 15 Kan. 608; Woods v. Bresnahan, 63 Mich. 641; Grimstad v. Lofgren, 105 Minn. 286, 17 L. R. A. (N. S.) 910. In many of the cases cited above the facts were that the debtor had declared his intention to remove from the State and had packed his household goods and delivered them at the railroad station for shipment out of the State, but it was held that the right to claim exemptions as a resident of the State had not been lost. Appellee did not waive her right to claim exemptions by failing to appeal from the- judgment of the justice sustaining the attachment, but she preserved her rights by appealing from the judgment denying the exemptions. Judgment affirmed.