Dowling v. Horne

• Decision Date: 02 February 1898
• Parties: DOWLING v. HORNE.
• Court: Alabama Supreme Court

23 So. 74

117 Ala. 242

DOWLING v. HORNE.

Supreme Court of Alabama

February 2, 1898

Appeal from circuit court, Dale county; J. W. Foster, Judge.

Proceeding by Anna J. Dowling, administratrix, etc., against Joel R Horne. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

The proceedings in this case were had upon the contest of homestead exemption, which arose in the following manner: On March 7, 1895, Anna J. Dowling, the appellant, recovered judgment in the circuit court of Dale county against the appellee, Joel R. Horne. Upon this judgment an execution was issued and delivered to the sheriff on April 9, 1895, and was levied upon certain lands belonging to the defendant, on July 24, 1895, which lands contained 160 acres. Upon the levy of this execution upon the lands, the defendant filed with the sheriff his claim to the lands levied upon as a homestead and thereupon the contest was duly and regularly instituted by the plaintiff in the execution filing his contest of the claim in the regular form and within the time allowed by law. Upon the hearing of this contest the evidence in the case tended to show that the contestee, who was a defendant in execution, during the month of January, 1895, leased the lands in execution to one J. J. Haynes for the year 1895 that upon said lands there was a dwelling house, which was also included in the lands rented to Haynes, and Haynes occupied said house as a residence; that in the month of February the said Horne made arrangements with Haynes to occupy one of the rooms in the dwelling house, stating that he was going to make this place his home, and saying, at the same time, that he was in trouble, referring to the suit brought against him by the plaintiff in execution. It was further shown that, under the arrangements made between Haynes and the defendant, Horne, the latter, on March 2d moved all of his furniture into one of the large rooms of the dwelling house on the lands in question, and that he and his wife occupied said room from that time on as their home using the kitchen and dining room conjointly with Haynes, and that he cultivated a part of the land upon the place. Upon the hearing of all the evidence, the court, at his request gave the general affirmative charge in favor of the contestee, and to the giving of this charge the contestant duly excepted. There were verdict and judgment for the contestee, and the contestant appeals, and...