Mcnally v. Mulheim

• Decision Date: 12 November 1887
• Citation: 79 Ga. 614,4 S.E. 332
• Parties: McNally v. Mulheim et al.
• Court: Georgia Supreme Court

4 S.E. 332

79 Ga. 614

McNally

v.Mulheim et al.

Supreme Court of Georgia.

November 12, 1887.

1. Homestead—Application for—Impeaciuient.

When an applicant for exemption presents his schedule, creditors, who attack it, are entitled to the opening and close before the jury.

2. Same—Application for—Reservation.

In an application for an exemption, the applicant cannot withhold such an amount of money as he deems necessary for attorney's fees and expenses.

3. Same.

In an application for an exemption, if the applicant has reserved to himself a largo amount of money, and has not delivered it up or scheduled it, he is not entitled to a homestead.

4 Same—Application for—Fraud.

A person applying for a homestead exemption, in order to obtain it, must come into court with clean hands.

5. Same.

An act of the legislature providing that an applicant for a homestead exemption, who is guilty of fraud, is not entitled to it, is not in violation of the provision of the constitution of Georgia conferring exemptions, as the law only provides a punishment for the fraud, which the constitution authorizes.

Error from superior court, Richmond county; Roney, Judge.

McNally applied for an exemption of certain property, which the court refused on account of fraud; whereupon he brought error.

Salem Butcher, for plaintiff in error. Prepley & Cozart, W. H. Fleming, and L. Phinizy, for defendants in error.

Blandford, J. McNally applied for an exemption of certain personal property, and amended his application by putting in some real estate. The defendants in error, who were creditors of McNally, appeared and objected to his taking the homestead, upon the ground of fraud; and upon that issue the parties went to a jury on appeal in the superior court. It was shown by the evidence that shortly before McNally applied for this exemption, he had possessed himself of the sum of about eight or nine hundred dollars in money; and they contended that he must account for it, that he must either surrender it to the court, or must put it in his schedule attached to his application. He replied that he did not have that money; that he had expended it in various ways, in paying lawyers' fees and other debts that he owed; but ho fell short of accounting for it to the extent of several hundred dollars. And the court instructed the jury that if he kept or secreted any of his property, and did not place it In his schedule and make a full and fair disclosure of it, he was guilty of fraud; and the jury found against his application.

I. A motion for a new trial was made by McNally, upon several grounds. In the first place, it is contended by the plaintiff in error that the court erred in allowing the creditors' counsel to open and conclude the case to the jury. When the applicant presented his application and schedule, ho had nothing more to do; and when the creditors made the attack upon him, we think it was in the nature of a collateral issue, such as authorized them to open and conclude the case to the jury. We think this case is governed by the decision in Johnson v. Martin, 25 Ga. 268. In that case an insolvent debtor presented his schedule, and his creditors appeared and attacked it, on the ground that he had left something out of his schedule, and was guilty of fraud in attempting to conceal a part of his property from creditors. The court in that case held that the creditors were entitled to open and conclude.

2. The next position assumed by counsel for the plaintiff in error is that the court errred in charging as follows: "The applicant has no right to withhold such an amount of money as he deems may be needful to employ attorneys, pay licenses, to...