Bell v. Anniston Hardware Co.

• Decision Date: 02 February 1897
• Citation: 21 So. 414,114 Ala. 341
• Parties: BELL v. ANNISTON HARDWARE CO
• Court: Alabama Supreme Court

21 So. 414

114 Ala. 341

BELL v. ANNISTON HARDWARE CO

Supreme Court of Alabama

February 2, 1897

Appeal from circuit court, Cleburne county; George E. Brewer, Judge. Action by the Anniston Hardware Company against Bell &amp Barker. Defendant Bell, on levy of attachment, claimed homestead. Judgment for plaintiff, and defendant Bell appeals. Affirmed.

Aiken &amp Burton, for appellant.

Blackwell & Keith, for appellee.

COLEMAN J.

The appellee sued out an attachment against the partnership of Bell & Barker and the members composing the firm, which was levied upon certain property to which the defendant Bell interposed a claim of homestead exemption. This claim was regularly contested, and at the close of the evidence the court instructed the jury, if they believed the evidence, to find the issue for the plaintiff. The case was appealed, and the giving of the affirmative charge for plaintiff is assigned as error.

There is very little material conflict in the evidence. On the 10th of November, 1892, the attachment issued, and was levied by the sheriff on the next day on "one storehouse and lot at Bell's Mills now occupied by Bell & Barker, and one dwelling house and lot at Bell's Mills now occupied by Billy Bell, as the property of W. J. Bell." This is the property claimed as a homestead. Its value was less than $2,000. The storehouse and dwelling were on a plat of land embracing about two acres, and the houses were not separated by any road or partition of any kind. The storehouse consisted of one story and a half story. The lower story was used solely for mercantile business, and the half story was divided into four rooms, with one window at each end of the building. The defendant had been engaged in merchandising alone in the lower story, and continued to do so until the formation of a partnership with Barker. During the time that Bell resided at Bell's Mills, he slept in one of the upper rooms of the storehouse, but took his meals elsewhere. After he left, the room was occupied as a sleeping room by the clerk of the firm. In December, 1891, Bell & Barker established a branch store at Arbacoochee, a place about five miles from Bell's Mills, and the appellant moved there to attend to that branch of the partnership business. He married in June, 1892, and he and his wife continued to reside there until the 10th day of November,-the day of the issuance of the attachment. The evidence shows that on that day he...