Barry v. Western Assur. Co.
| Decision Date | 01 June 1897 |
| Parties | BARRY v. WESTERN ASSUR. CO. |
| Court | Montana Supreme Court |
Appeal from district court, Silver Bow county; W. O. Speer, Judge.
Suit by Elizabeth Barry against the Western Assurance Company on an insurance policy. From judgment for plaintiff, defendant appeals. Reversed.
The plaintiff (respondent) sued the defendant and appellant to recover $1,000 alleged to be due and owing on account of an insurance policy issued by the defendant company to plaintiff upon certain property in Meaderville, which said property plaintiff claimed as a dwelling house and homestead. It is conceded that the house was destroyed by fire about September 20, 1893. The defense raised by the answer was to the effect that about September 25, 1893, certain creditors sued the plaintiff, and issued writs of attachment, and attached all moneys in the possession of this defendant and its agents (in the manner provided by law) belonging to plaintiff, and thereafter recovered judgments against the said Elizabeth Barry, and issued executions, and that thereafter the defendant company paid over to the sheriff under the executions all moneys which might be due under the policy. In her replication plaintiff alleges that she is now, and has been for many years, a married woman, a sole trader, and the head of a family; that she built and constructed the house which was destroyed by fire, and upon which she procured the insurance, out of her own earnings; and that she claimed the premises as a homestead. There was a trial and judgment in favor of plaintiff. The defendant moved for a new trial which motion was overruled. From the judgment and order overruling the motion for a new trial, defendant appeals.
Chas R. Leonard and J. W. Cotter, for appellant.
W. S Shaw, for respondent.
HUNT J. (after stating the facts).
The plaintiff's principal contention is that the money due to her under the insurance policy was exempt from levy by attachment in the hands of the company because the house destroyed was her homestead, and because she was the owner thereof and was the head of a family. The appellant, on the other hand, argues that plaintiff was not the head of a family, and was not, therefore, entitled to claim a homestead exemption. If, therefore, the privilege of claiming exemption of the property destroyed as a homestead is available to plaintiff at all, it is because the evidence has established her headship of the family. We are thus obliged to look into the facts to ascertain whether her relation as the head of the family was established. In doing this we shall only regard the plaintiff's testimony. It appears that Mrs Barry and her husband had been married for 32 years before this suit was tried, and lived and cohabited...
To continue reading
Request your trial