Irwin v. Taylor & Co.

• Citation: 2 S.W. 787,48 Ark. 224
• Parties: IRWIN v. TAYLOR & CO
• Decision Date: 22 January 1887
• Court: Supreme Court of Arkansas

2 S.W. 787

48 Ark. 224

IRWIN v. TAYLOR & CO

Supreme Court of Arkansas

January 22, 1887

APPEAL from Dallas Circuit Court, Hon. J. M. BRADLEY, Judge.

Reversed and remanded.

R. C Fuller, for appellants.

1. The justice had no jurisdiction to try the attachment branch of the case at all. (Bush v. Visart, 40 Ark. 124.) The justice having no jurisdiction, the circuit court acquired none on appeal.

2. The constitution clearly confers a privilege upon any resident of this state, which he may claim at any time before final sale by filing his schedule and claiming his exemption, whether before or after final judgment. (Const. 1874, art. 9, sec. 3; Mansf. Dig., sec. 3006.) Appellant's schedule was filed in apt time. 46 Ark. 43; ib., 495.

W. P. & A. B. Grace, for appellees.

1. Appellant did not appeal from the judgment sustaining the attachment.

2. Appellant, in his schedule, failed to allege or prove actual occupancy of the lot as a homestead. This was fatal. Const art. 9, sec. 3; 42 Ark. 175; 46 ib., 49.

It was not filed in apt time. A failure to claim an exemption in the time and manner pointed out by the statute amounts to such waiver. 28 Ark. 488; 40 ib., 357.

The statute fixes the time when the schedule is to be filed "upon the issue against him * * * of any attachment." It is too late after judgment and condemnation of the land. Mansf. Dig., sec. 5033; 46 Ark. 47; 28 ib., 488; 40 ib., 357; Freeman on Ex., sec. 212; Waples on Alt., p. 165; Thomp. on Home. and Ex., secs. 826 715; Rover on Jud. Sales, secs. 1435-6.

1. EXEMPTION OF HOMESTEAD: Supersedeas after judgment in attachment.

OPINION

SMITH, J.

E. S. Taylor & Co., sued Irwin & Co., before a justice of the peace, and took out an attachment, which was levied upon a town lot as the property of John Irwin, one of the defendants. The plaintiffs recovered a judgment for their debt, but the attachment was quashed. The plaintiffs appealed, and in the circuit court judgment was again rendered in their favor, the attachment sustained and the lot condemned to sale. No appeal was taken from this judgment, and for satisfaction thereof, a special fi. fa. was issued and the lot advertised for sale. John Irwin thereupon filed his schedule of exempted property, claiming the lot as his homestead, and the clerk granted a supersedeas.

The plaintiff now moved the circuit court to quash the supersedeas because:

First--It was not alleged that the house and lot were occupied by Irwin as a home; and,

Second--It was not filed in time.

The circuit court did not pass upon the ground first mentioned, but ruled that it was necessary to claim the exemption before final judgment in the attachment suit. It therefore discharged the supersedeas.

Irwin was not estopped by the judgment in the attachment suit to claim his homestead. His right of homestead was not, and could not, have been litigated in that action. For justices of the peave have no jurisdiction where a lien on, or title to, or possession of, land is involved. (Const. of 1874, art. 7, sec. 40.) And by appeal from their judgments, the circuit court acquires no greater jurisdiction than they possessed. The constitutionality of the act of January 23, 1875 (Mansf. Dig. sec. 4125, et seq.), authorizing the constable to levy an attachment upon land, was sustained upon the distinct ground that it did not undertake to empower the justice to make any adjudication of such questions. Bush v. Visant, 40 Ark. 124.

No doubt the ground of attachment may be...