Jetton Lumber Co. v. Hall

• Decision Date: 03 February 1914
• Citation: 67 Fla. 61,64 So. 440
• Parties: JETTON LUMBER CO. et al. v. HALL.
• Court: Florida Supreme Court

64 So. 440

67 Fla. 61

JETTON LUMBER CO. et al. v. HALL.

Florida Supreme Court

February 3, 1914

Appeal from Circuit Court, Hillsborough County; F. M. Robles, Judge.

Bill by Minnie Hall against the Jetton Lumber Company, a corporation and others. From an order overruling demurrer to complaint defendants appeal. Affirmed.

Syllabus by the Court

SYLLABUS

Organic and statutory provisions relating to the homestead and personal property exemptions should be liberally construed in the interest of the family, but the law should not be so applied as to make it an instrument of fraud or imposition upon creditors.

Who is the 'head of a family,' within the meaning of section 1 of article 10 of the state Constitution, exempting homesteads and $1,000 worth of personal property from forced sale, must be ascertained from the facts of each case. Where the husband has absconded, deserting his wife and leaving her residing in this state with children depending upon her, she may be held to constitute the head of her family, so as to permit her to avail herself of the beneficient provisions of the Constitution (citing Words and Phrases, vol. 4, p. 3232).

COUNSEL Wall & McKay, of Tampa, for appellants.

V. H Nysewander and C. W. Stevens, both of Tampa, for appellee.

OPINION

SHACKLEFORD C.J.

On the 25th day of September, 1913, the appellee filed her bill in chancery against the appellants, which, omitting the formal parts, reads as follows:

'Mrs. Minnie Hall, by her next friend, John S. Horter, of the county of Hillsborough and state of Florida, brings this her bill of complaint against the Jetton Lumber Company, a corporation, with its principal place of business in the city of Tampa, county of Hillsborough and state of Florida, and W. C. Spencer, sheriff of Hillsborough county, state of Florida.

'The complainant would show unto your honor that on the 23d day of September, A. D. 1913, one of the above defendants, the Jetton Lumber Company, filed suit against the complainant's husband, Harry Hall. That the said suit was instituted in the county court, by attachment of two automobiles, described as follows: One Overland car, city number, No. 1250, and one Buick car. That the said automobiles are still held by W. C. Spencer, one of the above defendants, under the said attachment levies.

The complainant would further show unto your honor that the said Harry Hall deserted the complainant on the 24th day of August, A. D. 1913, and that since the said date the complainant has been unaware of the whereabouts of her said husband, though she has since been informed that he is residing within the state of Massachusetts. That the said Harry Hall left against the will of this complainant, and, as your complainant believes, without any intention of returning.

The complainant would further represent unto you honor that she is 35 years of age, has two children by her said husband, to wit, George, age 11, and Jack, age 8 years. That the said children are dependent solely upon this complainant for their support and maintenance, and that this complainant, together with her said children, reside in the city of Tampa.

'The complainant would further show that the automobiles above described are in danger of being disposed of at forced sale, in pursuance of the said attachment suit, as aforesaid, by said defendants.

'That the said automobiles afford the complainant her only means of making a livelihood and a subsistence for herself and her two children (neither the complainant nor her said children having received any support whatsoever from her said husband since his desertion, as aforesaid, nor have they any reason to expect his future aid).

'The complainant further represents that against the said automobiles there are existing, respectively, incumbrances in the sums of $75 and $375, leaving an equity in your complainant of not more than $550. That this equity constitutes the whole of both the complainant's and her said husband's property, and is a true and complete inventory of the whole of their said property.

'That this complainant claims the said automobiles as exempt from said seizure and forced sale in pursuance thereof, under the Constitution of the state of Florida.

'The premises considered, and inasmuch as the complainant is without remedy save in a court of equity, where such matters are properly cognizable, and to the end that the defendants may be required to answer this, the complainant's bill of complaint, but not under oath, answer under oath being hereby expressly waived. And that the complainant's right to exempt the said property be decreed, and that the same be set apart to the complainant as exempt from seizure and sale, under said attachment writs, and the defendants be restrained from selling or disposing of said property.

'And that the complainant may have such other and further relief in the premises as equity may require and to your honor shall seem meet:

'May it please your honor to grant unto the complainant the State's most gracious writ of subpoena, issued out of and under the seal of this court, directed to the said Jetton Lumber Company and W. C. Spencer, commanding them to be and appear before this honorable court on a day certain therein to be named, and under a penalty certain therein to be stipulated, and to stand to and abide by such orders and decrees, as may be made in this cause.

'The complainant prays the court to grant her a writ of injunction, enjoining and restraining the said Jetton Lumber Company and W. C. Spencer, the defendants, their attorneys, agents, and representatives from selling or disposing of the said automobiles until the further order of this court.

'And the complainant will ever pray,' etc.

To this bill the defendants interposed the following demurrer:

'These defendants, by protestation, not confessing or acknowledging either of the matters or things in the bill of complaint contained to be true, say that said bill is bad in substance and insufficient in law, wherefore the said defendants demur to said bill, and for substantial matters of law to be argued in support of said demurrer, and assign the following, to wit:

'First. The bill does not state a cause of action cognizable in equity.

'Second. The bill shows on its face that it is instituted by a married woman without the joinder of her husband or next friend.

'Third. The bill shows on its face that the property attached is not the property of the complainant, but is the property of complainant's husband, who is a nonresident of the state of Florida.

'Fourth....