Wuicich v. Solomon-Wickersham Co.

• Decision Date: 02 June 1916
• Docket Number: Civil 1517
• Citation: 157 P. 972,18 Ariz. 164
• Parties: SAM WUICICH, Appellant, v. SOLOMON-WICKERSHAM COMPANY, a Corporation, Appellee
• Court: Arizona Supreme Court

157 P. 972

18 Ariz. 164

SAM WUICICH, Appellant, v. SOLOMON-WICKERSHAM COMPANY, a Corporation, Appellee

Civil No. 1517

Supreme Court of Arizona

June 2, 1916

APPEAL from a judgment of the Superior Court of the County of Gila. G. W. Shute, Judge. Reversed and remanded.

Mr. F C. Jacobs, for Appellant.

Mr Geo. R. Hill and Mr. E. W. Miller, for Appellee.

OPINION

ROSS, C. J.

The Miami Mercantile Company, a partnership composed of R. L Tadich, M. L. Tadich and Sam Wuicich, was sued by appellee who caused to be issued and levied upon the property hereinafter described a writ of attachment to secure the payment of any judgment that might be obtained. The property so levied upon was lots numbered 422 and 424, block 16, of the original town site of Miami, upon which lots was situate a two-story concrete building, the first floor of which is divided into two rooms intended for business purposes; the second floor being intended for a rooming house or hotel. After the attachment was levied, appellant Wuicich in due form filed a homestead declaration upon said lots 422 and 424, and in his declaration for homestead stated that the value thereof was $4,000, and that the same was community property of himself and wife. The regularity and sufficiency of the claim of homestead is not questioned. The record discloses that appellant Wuicich was a joint owner of an undivided one-half interest in said lots; the other undivided one-half being owned by one Martin Despot. The claim of exemption was disallowed by the court, and judgment entered foreclosing the attachment lien and ordering the property sold to satisfy the judgment. Appellant appeals from the judgment of the lower court, assigning as error that the property was not subject to attachment and judgment.

The contention of the appellee is: First, that under our homestead law the head of a family is only entitled to claim that land as his homestead upon which is situated his dwelling-house and in which he resides; second, that the head of a family cannot claim a homestead in real estate or land held in tenancy in common. Homesteads are purely creatures of the statute, and we must therefore look to our own statutes to find out what that term or designation means. If the language is plain, it is the duty of the court to give it effect by following it; if its meaning be doubtful, we may look to the reasoning of other courts upon similar statutes, if there be any, to aid us in the construction of our statute. Our statute is unique in at least two respects: First, it has no prototype, so far as we can find; and, second, it is without ambiguity -- its meaning is plain and easily understood. Those entitled to a homestead are named, and the homestead defined, by paragraph 3288 of the Civil Code of 1913. This paragraph reads:

"Every person who is the head of a family, and whose family resides within this state, may hold as a homestead, exempt from attachment, execution and forced sale, real property to be selected by him or her, which homestead shall be in one compact body, not to exceed in value the sum of four thousand dollars, and shall consist of the dwelling-house in which the claimant resides and the land on which the same is situated or of land that claimant shall designate, provided the same is in one compact body."

It will be noted that the exemption is of "real property," and this real property may consist, first, of the dwelling-house in which the claimant resides and the land on which the same is situated; or, second, this real property may consist "of land that the claimant shall designate, provided the same is in one compact body." The privilege or right of the head of a family to select real property other than the dwelling-house in which he resides, it would seem, is here plainly and unambiguously given. Under this privilege he may select unimproved land, provided it is in one compact body and does not exceed $4,000 in value, or he may select, with the same limitation, improved business property or improved farming land, whether it has a dwelling on it or not. In other words, the legislature intended that every head of a family living in this state should have exempt from attachment, execution or forced sale at least $4,000 worth of real property, whether it was utilized as a home or not. If claimed as a home, it must be occupied, as such, and cannot exceed in value $4,000; if not used and claimed as a home, it must be limited to a valuation of $4,000, and, whichever it be, the dominating central idea, under our statute, is not, like that in most of the states, that it shall be occupied, but that it shall be a fund or asset to which the family may look for support, free from creditors.

We cannot follow the appellee's course of reasoning, wherein it undertakes to say that the homestead in this state can only be of "a dwelling-house in which the claimant resides and the land on which the same is situated." Our statute is not, as appellee contends, the same as the California statute, and it would be a perversion of its language and its meaning to restrict the homestead as contended for. The California statute reads:

"The homestead consists of the dwelling-house in which the claimant resides, and the land on which the same is situated, selected as in this title provided." Civ. Code, § 1237.

True some of this language is used in our statute; but the words "real property," proceeding it,...