Mallard v. First National Bank of North Platte

• Decision Date: 05 June 1894
• Docket Number: 5307
• Citation: 59 N.W. 511,40 Neb. 784
• Parties: FRANK MALLARD ET AL., APPELLEES, v. FIRST NATIONAL BANK OF NORTH PLATTE, APPELLANT
• Court: Nebraska Supreme Court

59 N.W. 511

40 Neb. 784

FRANK MALLARD ET AL., APPELLEES, v. FIRST NATIONAL BANK OF NORTH PLATTE, APPELLANT

No. 5307

Supreme Court of Nebraska

June 5, 1894

APPEAL from the district court of Lincoln county. Heard below before CHURCH, J.

AFFIRMED.

T. C Patterson, for appellant:

A homestead, to be exempt, must be owned and occupied by a resident of this state. (Compiled Statutes, sec. 1, ch. 36; Bowker v. Collins, 4 Neb. 496.)

When Mr. Mallard removed to Colorado with his family and there established his home, where he continued to reside for nearly two years, renting his former homestead in Nebraska, he abandoned his Nebraska homestead and acquired a residence in Colorado. (Vasey v. Board of Trustees of Washington County, 59 Ill. 188; Swaney v. Hutchins, 13 Neb. 266; Carr v. Rising, 62 Ill. 14; Cahill v Wilson, 62 Ill. 137; Jarvais v. Moe, 38 Wis 440; Cabeen v. Mulligan, 37 Ill. 230; Titman v. Moore, 43 Ill. 169.)

Mr. Mallard's exercise of political privileges in Colorado is conclusive on the question of his residence. (5 Am. & Eng. Ency. of Law, 870, 871; Kellogg v. City of Oshkosh, 14 Wis. 678; Smith v. Mattingly, 13 S.W. [Ky.], 719; Kutch v. Holly, 14 S.W. [Tex.], 32; Shelton v. Tiffin, 6 HOW [U. S.], 162.)

Appellees cannot defeat the attachment lien by moving onto the premises after judgment was obtained. (Bowker v. Collins, 4 Neb. 496.)

What the wife may have said, done, or intended, can have no bearing on this case, for the reason that her residence, as a matter of law, must follow her husband's as long as the marital relation is maintained. (Thompson, Homestead & Exemptions, sec. 276; 5 Am. & Eng. Ency. of Law, 869; Swaney v. Hutchins, 13 Neb. 268; Barber v. Barber, 21 HOW [U. S.], 582.)

J. S. Hoagland, contra, contending that appellees had not by their absence abandoned their homestead, cited: Lindsay v. Murphy, 76 Va. 428; Austin v. Swank, 9 Ind. 109; Mark v. State, 15 Ind. 98; 9 Am. & Eng. Ency. of Law, 493, 502; Bradshaw v. Hurst, 57 Iowa 745; Leake v. King, 85 Mo. 413; Guy v. Downs, 12 Neb. 532.

OPINION

The opinion contains a statement of facts.

HARRISON, J.

On the 11th day of June, 1891, the appellees filed a petition in the district court of Lincoln county, and commenced an action against appellant, alleging that appellees were the owners and in possession of lot 8 in block 106, in the city of North Platte, in said county, together with the dwelling house situated thereon, which they were occupying as a home and had so occupied since January, 1890; that they were husband and wife and had a son eleven years of age dependent upon them for support, and owned no other lands, town lots nor houses subject to exemption; that on or about December 3, 1890, while they were temporarily absent from this state, the appellant procured an attachment to be issued from the district court of Lincoln county, and levied upon the premises above described, and on a service by publication procured a judgment in the attachment proceedings and an order for the sale of the attached property; that prior to the issuance of the order of sale the appellees duly served a notice upon appellant of the homestead character of the premises and their claim of its exemption; that appellant and the sheriff to whom the order of sale was issued have ignored the notice so given and refused to set apart the premises claimed, or any portion thereof, to appellees as a homestead, and threaten to sell and have advertised, and are threatening to and will sell, the premises to satisfy the judgment; that the debt upon which the attachment suit was founded was contracted during the time that appellees were occupying the premises herein described as their homestead, which fact was known to appellants at the time the indebtedness was incurred; that the lot described is of record in the name of Frank Mallard, of appellees, but appellees have contributed jointly and almost equally in money and labor to and for its purchase and improvement, to make a home for themselves and family, and that it is of less value than $ 2,000. The prayer of the petition was for an injunction restraining the sale of the property and the setting off to appellees of the premises as a homestead. Appellant answered denying each and every allegation not admitted in its answer; admitted that appellees were husband and wife, and that the title to the lot in controversy was of record in the name of Frank Mallard, the husband and head of the family; pleaded the commencement of the attachment suit, the obtaining of the judgment, issuance of the order for the sale of this and other property attached to satisfy the judgment, and further pleaded that at the time the judgment was entered, and for more than two years prior thereto, appellees were, and had been, actual residents and citizens of the state of Colorado and not residents of this state, and not entitled to any exemptions; and further alleged damages from the issuance of the order of injunction in this case, and prayed for dissolution of the injunction and judgment for damages. The appellees' reply was a general denial of all new matter contained in the answer. A trial of the issues was had, which resulted in a finding in favor of appellees, that the premises constituted the home and homestead of appellees, worth less than $ 2,000, and were exempt from forced sale, and a decree was rendered making the injunction perpetual, from which the appellants have perfected an appeal to this court.

The testimony in the case is to the effect that the appellees were husband and wife; that they had one son, and commenced living in the premises in controversy either during the year 1880 or 1881; that the husband was a painter by trade and had been employed in North Platte, but could obtain no further work to do there, and in September, 1889, went to Denver to get something to do, and in this was successful, but during the month of December was taken sick, and sent to North Platte for his wife, who was then yet living in the house there. She at this time, in compliance with his request, went to Denver, and after her arrival there the appellees boarded for a short time; then, as a matter of economy, it being quite expensive boarding and he being without work a portion of the time, and a part of the time unable to labor because of sickness, they rented a house and sublet all but two rooms, in which two rooms they lived until they left Denver for North Platte, the wife in April, 1891, and the husband some time in June of the same year. When the wife left North Platte for Denver, in December, 1889, she placed the greater part of their household goods, etc., which they had been using while residing in the house and on the premises in North Platte, in the carriage house situated thereon and leased the house, reserving no part of it except the clothes press, and the rent money was sent to them in Denver and used by them there to pay board and other expenses of living. During their stay in Denver the wife returned to North Platte twice, and the evidence shows that during this entire time they were making efforts to obtain employment again in North...