Smith v. Guckenheimer

• Decision Date: 07 February 1900
• Parties: SMITH v. GUCKENHEIMER et al.
• Court: Florida Supreme Court

27 So. 900

42 Fla. 1

SMITH v. GUCKENHEIMER et al.

Florida Supreme Court

February 7, 1900

Appeal from circuit court, Hillsboro county; Barron Phillips, Judge.

Action by Thomas B. Smith against Simon Guckenheimer and others. Judgment for defendants, and plaintiff appeals. Affirmed.

Syllabus by the Court

SYLLABUS

1. This court had the power to adopt the rule numbered 20, for the submission of civil causes upon abstracts of the record adopted September 16, 1895, and amended on February 17, 1897. Such rule is as binding upon the court as it is upon litigants, and this court is bound to observe its provisions in the adjudication of causes to which such rule is applicable. Carter, J., dissenting.

2. Under section 1, art. 10, Const. 1885, the exemption of a homestead in an incorporated city or town does not extend to any other improvements or buildings than are comprehended under the terms 'residence and business house of the owner,' and, where the excessive improvements or buildings are not physically connected with the residence or business house, such improvements or buildings, and the land upon which they are situated, may be sold under execution for the owner's debts.

3. Under section 1, art. 10, Const. 1885, the exemption of a homestead in an incorporated city or town does not extend to improvements other than such as constitute the residence and business house of the owner, nor to the land upon which they are situated, even though such improvements are inseparably attached to, or form parts of, an indivisible building, which likewise constitutes the residence and business house of the owner. Mabry, J., dissenting.

4. S the head of a family consisting of a wife and eight minor children, residing in this state, was the owner of a lot of land in an incorporated city, containing less than one-half acre, upon which was situated a two-story frame building, so constructed that there were five storerooms therein on the ground floor, one of which was used by the owner as his business house, while the other four were rented to tenants and not used or occupied by the owner either for residence or business purposes. The second story consisted of bedrooms all of which except one, which was vacant, were occupied by S. and family, and had been for two years previous thereto, as a residence, and for the entertainment of lodgers and boarders. The building was incapable of being physically divided without destroying it. G. & Son, execution creditors of S., levied the lot of land claimed as exempt, and S. filed his bill to restrain the sale thereof, claiming it to be exempt as his homestead. G. & Son filed their answer and cross bill denying that all the property was used as a homestead, and praying in the crossbill that the court set aside as a homestead so much of the property as was proper, and subject the residue to sale under the execution. The court entered a decree requiring S. to select so much of the premises as would secure to him a residence and business house, dividing the building by perpendicular lines, so that his place of residence should be immediately over his place of business. S. having failed to select as required by the decree, the court dismissed his bill; and upon the cross bill, by consent of G. & Son, decreed that the south 39 feet of the building, with all vacant portions of the lot, be set apart to S. as exempt, and that the residue of said building and the land upon which it was situated was subject to sale under the creditors' execution. S. appealed from the decree, claiming that the entire building and lot should have been set apart to him as exempt, but making no contention that the allotment to him was unfair, or insufficient for residence and business purposes. Held, that the decree be affirmed. Mabry, J., dissenting.

COUNSEL

Carter & Graham, for appellant.

G. A Hanson, for appellees. In this cause the appellant (complainant below) filed his bill on the 5th day of July, 1894, in the circuit court of Hillsboro county, against the appellees, alleging, in substance, that he was the head of a family consisting of a wife and eight minor children, residing in the state of Florida, all of his family residing with him, and dependent upon him for support; that on the 28th of April, 1894, and long prior thereto, he was the owner in fee simple of lot 10 of block 28 of Ybor City, a subdivision of the city of Tampa, in the county of Hillsboro, and state of Florida, said lot being less than one-half acre in extent; that on the date above named, and for several years prior thereto, he was using and occupying said lot and the building thereon as a home for himself and family; that under the constitution and laws of Florida the building and lot were exempt; that on the 26th of April, 1894, defendant below (appellee herein) sued out a writ of attachment against him for $1,000, and had such writ levied upon the above-described property; that afterwards a judgment was obtained in said attachment suit, execution issued thereon, and levied upon the above-described property; that the matters and things for which said judgment was obtained were not such as under the constitution of the state of Florida are made a charge upon a homestead. The bill prayed for an injunction restraining the defendants from further proceedings to subject said property to the satisfaction of the judgment. After notice, and upon the appellant giving bond required by the court, a temporary writ of injunction was issued on the 9th of July, 1894. On the 11th of July the defendants filed an answer and cross bill, admitting that the complainant was the head of a family, and resided upon the property described; that the lot of land was less than a half acre; but denied that all the property was used as a homestead, and praying in the cross bill that the court would set aside so much of the property as the court thought was proper, and subject the rest to the payment of the judgment. On the 28th of July, 1894, the complainant demurred to the cross bill on the ground that there was no equity in it, which demurrer was overruled by the court; and on the said 28th day of July, 1894, the complainant excepted to the answer filed by the defendants upon the ground that the same was insufficient, immaterial, and constituted no defense to the bill of the complainant, which exceptions were, on the 28th of July, also overruled by the court, and thereupon the complainant filed an answer to the cross bill and replication to the defendants' answer; whereupon the cause was referred to a master in chancery to take the proof, and the following agreed state of facts was reported by the master: 'That the name of complainant is Thomas B. Smith; that he is the head of a family residing in the state of Florida; that his place of residence was, on the day that the attachment was issued referred to in the bill, lying and being situate in the county of Hillsboro and state of Florida, and known as 'Lot 10, of block 28, of Ybor City, state of Florida, county of Hillsboro'; that there were residing with him at that time, on the said premises, his wife and eight children under the age of 21 years; that the building erected on said premises cost $2,650 when it was built; that the attached diagram represents the location and number of rooms in said building; that he, together with his family, occupies the rooms on said diagram marked 'T. B. S.'; that various tenants occupy the other rooms as shown by the diagram; that the said Smith, at the time of the levying of the attachment, owned no other property in the city of Tampa; that prior to said attachment he had resided in the city of Tampa for the space of two years, and at the time of the service of the attachment had no other house or home, and was bona fide living upon the premises above described, and continuously resided thereon up to this time; that the land upon which the building is erected is a lot 70x95 feet, and less then half an acre; that the building is a frame building, and cannot be physically divided without destroying the building; that the said T. B. Smith does not keep a regular boarding or lodging house, but occasionally takes lodgers in certain of the upstairs rooms in said building, for the use of which he makes reasonable charges; that for the downstairs rooms occupied by tenants he receives rent.'

The case came on to be heard on the pleading and agreed state of facts on the 20th day of May, 1895, and the court made the following decree:

'That the complainant, Thomas B. Smith, has so constructed his buildings as to conflict with the provision of the constitution providing that no more improvements than a residence and a business house shall be exempt in a city or town, by constructing a block of five stores, four of which are, as shown by the proof, rented to other persons; wherefore it is further adjudged and decreed that the complainant, Thomas B. Smith, is the head of a family, and entitled to a homestead, and that he be allowed to select so much of the said premises as will secure to him a residence and business house thereon, dividing the building by perpendicular lines so that he have his place of residence for his family immediately over his place of business. And twenty days are allowed for the complainant to make and file with this court the diagram of such selection. All further orders of this court await the expiration of said time.

'That this cause came on the be finally heard upon the pleadings, agreed state of facts, and the former orders of this court, and the court being advised that the complainant, Thomas B. Smith, declines to avail himself of the privilege accorded him by a former order of this court to select for himself so much of the lot in controversy and building thereon

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