Hollingsworth v. Smith

45 Ga. 583

• Court: Supreme Court of Georgia
• Decided: January 15, 1872
• Status: Published

Opinion

McCay, Judge.

It is true that the Act of 1868 authorizes any one who does not desire to take advantage of its provisions, if he pleases, to seek the benefit of the old exemption law, as provided by the Code. But there was nothing in this bill or answer or in any of the proceedings to authorize the charge asked for. The bill and the answer make the issue that was on trial, and there was nothing in either to call for the request made. The issue was whether the homestead, as set apart by the Ordinary, on the petition, was or was not subject to the fi. fa. That was the thing the jury was to pass on, and the question whether, if a wholly different petition had been made, and a wholly different proceeding taken, the exemption procured under such other petition and proceeding, would have been subject to the fi. fa., was a matter wholly foreign to the case before the Court, and we think the Judge was perfectly right not to charge as asked.

Judgment affirmed.