Kimsey v. Rogers

• Decision Date: 15 March 1928
• Docket Number: 6363.
• Citation: 142 S.E. 667,166 Ga. 176
• Parties: KIMSEY et al. v. ROGERS et al.
• Court: Georgia Supreme Court

142 S.E. 667

166 Ga. 176

KIMSEY et al. v. ROGERS et al.

No. 6363.

Supreme Court of Georgia

March 15, 1928

Error from Superior Court, Whitfield County; C. C. Pittman, Judge.

Petition by W. M. Rogers and others against R. O. Kimsey and others. Judgment for plaintiffs, defendants' motion for new trial was overruled, and defendants bring error. Reversed, and new trial granted.

An execution against W. M. Rogers was levied upon a tract of land containing 109 acres. Before the day of sale under the levy, Rogers, as the head of a family consisting of his wife and six minor children under the age of 16 years, made out a schedule of property claimed as exempt as a statutory or short homestead, and returned it to the ordinary of the county of his residence. This schedule embraced 80 acres of the tract of land levied upon. The entire tract was sold under the levy, and was bought by R. O. Kimsey, to whom the sheriff executed a deed. Prior to the sale notice was given to all persons present that Rogers had made and returned his schedule claiming a portion of the land levied on as a short or statutory homestead, and that the same was of file in the ordinary's office. Afterward the county surveyor surveyed and platted 80 acres of the tract of land levied upon and sold, and the plat was filed with the ordinary of the county. Rogers then filed a petition in his own behalf and in behalf of his wife and minor children, against Kimsey and the sheriff, to enjoin the sheriff from putting Kimsey in possession of the entire tract of land levied on and sold. The judge refused to grant a temporary injunction; this court reversed that judgment. Rogers v. Kimsey, 163 Ga 146, 135 S.E. 497. When the case went back the defendants, by an amendment to their answer, set up that the schedule and exemption of said 80 acres of the tract so purchased by Kimsey was void on the grounds: (1) That the land so claimed to be exempt does not derive its chief value from its adaptation to agricultural purposes; (2) that the improvements on the real estate so claimed as exempt exceed in value $200, said improvements being of the value of $750 to $1,000.

On the trial W. M. Rogers testified that the improvements on the land claimed as exempt were worth about $50 or $75, and that the chief value of the land arose from its adaptability to agricultural purposes. W. H. Pittner testified to the same effect as to the value of the improvements. Sant Reid testified that the improvements were worth about $125 or $150. Tom Manis testified that the improvements were not worth more than $150 or $175. On behalf of the defendants Grover Martin testified that the improvements on the land claimed as exempt were worth from $750 to $1,000. J. H Miller testified that the improvements were worth about $500 or $600. Julius Partor testified that the improvements were worth $400 or $500. Kimsey testified that these improvements were worth $1,000. The jury returned a verdict in favor of the plaintiffs. The defendants moved for a new trial upon the general grounds, and upon certain special grounds which appear in the opinion. They excepted to the overruling of the motion.

Wm. E. Mann and W. Gordon Mann, both of Dalton, for plaintiffs in error.

D. W. Mitchell, of Dalton, for defendants in error.

HINES J.

1. A brief of the evidence introduced in the trial of this case was approved by the trial judge as true, and ordered filed as a part of the record; and it was so filed. The bill of exceptions omits to specify the brief of evidence as a part of the record to be sent to this court, and such brief is material to a clear understanding of the errors complained of. Plaintiffs in error move to amend the bill of exceptions by specifying the brief of evidence as a part of the record to be sent to this court. As the record contains a duly authenticated brief of the evidence accompanying the motion for new trial, and as the bill of exceptions fails to specify it as a part of the record to be sent to this court, and as it is a material part of the record necessary to a clear understanding of the errors complained of, the bill of exceptions is amendable by specifying the brief of evidence as a part of the record to be sent to this court. Kelly v. McGehee, 67 Ga. 364; Ruffin v. Paris, 75 Ga. 653 (2); Civil Code, §§ 6184, 6188. Leave is granted to the plaintiffs in error so to amend.

2. Fifty acres of land, and five additional acres for each child under the age of 16 years, of the property of every debtor who is the head of a family, is exempted from levy and sale by virtue of any process whatever, under the laws of this state; provided none of the land claimed as exempt is within the limits of a city, town, or village, and does not include any cotton or wool factory, saw or grist mill, or any other machinery propelled by water or steam, the value of which exceeds the sum of $200, and provided said land does not derive its chief value from causes other than its adaptation to agricultural purposes. The land so exempted shall include the dwelling house, if the value of said house and improvements does not exceed the sum of $200. The land so exempted shall remain for the use and benefit of the family of the debtor. Civil Code, § 3416 et seq. The act of the ordinary in receiving and recording the schedule of property sought to be set aside as a homestead under the provisions of Code, just cited, is ministerial only, and the validity of such exemption may be collaterally attacked in a court of competent jurisdiction in a case involving the title of a purchaser at sheriff's sale of the property claimed to be exempt. Marcrum v. Washington, 109 Ga. 296, 34 S.E. 585; Stinson v. Hirsch, 125 Ga. 149, 53 S.E. 1011.

3. The existence of the facts necessary to constitute a valid exemption under the sections of the Code before referred to need not affirmatively appear on the face of the schedule filed, but it is none the less essential that they should actually exist. One of these necessary and essential facts is that the head of a family can exempt land not in a city town, or village, only when the improvements thereon do not exceed $200 in...