Sloan v. Price

• Decision Date: 08 January 1890
• Citation: 10 S.E. 601,84 Ga. 171
• Parties: Sloan v. Price.
• Court: Georgia Supreme Court

10 S.E. 601

(84 Ga. 171)

Sloan

v.Price.

Supreme Court of Georgia.

Jan. 8, 1890.

Exemptions—Res Judicata.

That a question could have been litigated in a former controversy between the same parties is enough to settle it by the judgment rendered in that case as to all the property involved in that litigation; but, to settle the question as to other property, it must appear that it was actually litigated, not only that it might have been. Thus a waiver of exemption applicable to cotton, as well as other personalty, may be urged to condemn the cotton after the other property has been adjudicated exempt, although the waiver might have been, but was not, urged to subject the other property.

(Syllabus by the Court.)

Error from superior court, Bartow county; Milner, Judge.

A. W. Fite and A. S. Johnson, for plaintiff in error. J. M. Neel, for defendant in error.

Bleckley, C. J. The judgment from which execution issued was rendered in April, 1885. A levy upon certain mules and a wagon was made on June 3d, thereafter. A claim to this property was interposed by Mrs. Sloan on June 24th. The fi. fa. was amended, and the levy fell. It was, however, levied upon the same property on August 8, 1885. The claim previously interposed seems to have been considered as applicable to the new levy, and a trial was had upon it in September, 1885, the result of which was a judgment by the justice of the peace that the property levied upon was not subject. That ended all controversyso far as the mules and wagon are concerned. In November following, the same fi. fa. was levied upon 1, 630 pounds of seed cotton. Mrs. Sloan interposed a claim to that, which was tried by a jury, and the cotton was found subject. Thereupon she brought a writ of certiorari, complaining that the finding was contrary to law and evidence. Upon the hearing the court overruled the certiorari, and she excepted. Her claim rested upon proceedings before the ordinary, had by her as the wife of Sloan, the defendant in fi. fa., commenced while the first levy upon the mules and wagon was pending, and terminated by the approval of the ordinary on July 18, 1885. The exemption embraced the mules and wagon, as well as the cotton; the latter being claimed as exempt while it was a growing crop. No question arises in the present case as to whether it could be claimed as exempt at that stage, but it may be well enough to refer to three cases on the subject, which are all that have been decided up to the present time, so far as we are aware. These cases are Tift v. Newsom, 44 Ga. 600; Cox v. Cook, 46 Ga. 301; Clements v. Lee, 47 Ga. 625. It is yet an open question whether a growing crop can be set aside as personalty, upon a claim by a debtor or his wife, as exempt property. Upon the trial of the second claim case, to-wit, that involving the cotton, Mrs. Sloan introduced her exemption papers, and proved that she had introduced them upon the trial of the former claim, — that which involved the mules and the wagon. Price, the plaintiff in fi. fa., replied to them by introducing the note dated June...