Brown v. Doneghey

46 Ark. 497

• Court: Supreme Court of Arkansas
• Decided: November 15, 1885
• Status: Published

Opinion

Cockrill, C. J.

This case is ruled by the ease of Garrett Bros. v. Wade, ante.

The appellee’s property was held by a constable under execution. He applied to the justice of the peace, who-issued the writ, to file his schedule of exempted property and issue a supersedeas to restrain the sale. The notice required by the statute had not been served on the plaintiff in execution five days before the schedule was offered, and the justice refused to issue the supersedeas for that reason. The defendant thereupon filed an affidavit and bond for appeal to the circuit court to prevent the sacrifice of his exemptions. Winter v. Simpson, 42 Ark., 411. The creditor followed the case and resisted the right of exemption in the circuit court, where the matter was heard de novo, but the court awarded the debtor his exemptions, and the creditor appealed to this court. His only contention is that he had no legal notice of the debtor’s intention to claim his exemptions. As we have before decided, his voluntary appearance and resistance of the right of exemption was a waiver of notice.

Affirmed.