Kimbrough v. Pitts

• Decision Date: 30 September 1879
• Citation: 63 Ga. 496
• Parties: Kimbrough et al. v. Pitts.
• Court: Georgia Supreme Court

63 Ga. 496

Kimbrough et al. v. Pitts.

Supreme Court of the State of Georgia

(September Term, 1879.)

[Warner, Chief Justice, being engaged as presiding officer of the senate in an impeachment trial, did not sit in this case.] Practice in the Superior Court. Attorney and client. Lien.

Appeal. Claim. Homestead. Amendment. Practice in the Supreme Court. Before L. T. Downing, Esq., *Judge pro hac vice. Muscogee Superior Court. May Term, 1879.

An execution from the county court of Muscogee county was levied on certain personalty as the property of J. W. Kimbrough, and was claimed by him as the head of a family. The claim affidavit stated that the property levied on was "the property of said J. W. Kimbrough (agent), under an exemption under the statute, set apart 30th November, 1877, by F. M. Brooks, ordinary of Muscogee county, after due and legal notice to said J. W. Pitts." Flournoy and Epping were securities on the claim bond. On the issue formed in the county court, the property was found not subject, and plaintiff appealed. The appeal bond recited in the body thereof, that it was within four days, but the attesting clause was dated "this--dlay of June, 1878."

When the case was called in the superior court, the presiding judge, Hon. M. J. Crawford, stated that he was disqualified, and directed counsel to agree upon a judge pro hac vice. They failed to do so, and Judge Crawford directed the clerk to appoint a judge to preside. To this exception was taken before Judge Crawford. L. T. Downing, Esq., was then appointed. Claimant's counsel moved to dismiss the appeal on account of the want of date already stated, and for other reasons not material here. The motion was overruled, and exception was taken.

Plaintiff's counsel moved to dismiss the claim because of want of sufficiency in the affidavit. One of the counsel for claimant stated in his place that the affidavit had been amended in the court below by inserting "as the head of a family, a wife and minor children." The court ruled that the appeal brought up the case de novo, and that the amendment was no part of the affidavit. Counsel for claimant then moved to amend by inserting the names of the beneficiaries of the homestead. The courtrequired such an amendment to be under oath. The claimant refused to take the *necessary oath, and the court would not force him to do so. His counsel then asked to be made parties, on the ground that they had a contingent fee in the property, that both plaintiff and claimant were...