Robinson v. Swearingen

17 S.W. 365, 55 Ark. 55, 1891 Ark. LEXIS 139

• Court: Supreme Court of Arkansas
• Decided: October 31, 1891
• Status: Published

Opinion

Hemingway, J.

1. Abandonment of homestead. i. A debtor entitled to claim a farm aa exempt does not lose the right by a temporary absence for purposes of trade, where there was never an intention to change his residence, but a fixed and unqualified intention to preserve it. The facts that the absence extended over a period of six years, and that the debtor during that period occupied another house owned by him, tend to show a change of residence, but are not conclusive. Euper v. Alkire, 37 Ark., 283; Tumlinson v. Swinney, 22 Ark., 400.

The court having found that there was no abandonment* and there being evidence to support the finding, we cannot disturb it.

2. Homestead in property attached. 2. The effect, upon the defendant’s right to exemptions, out of attached property, of a judgment sustaining the attachment and ordering the attached property to be sold has. been adverted to, but never announced, by this court. See Irwin v. Taylor, 48 Ark., 226; Reynolds v. Tenant, 51 Ark., 87; Richardson v. Adler, Goldman & Co., 46 Ark., 43.

It is now contended that such judgment is conclusive that all the attached property is subject to sale thereunder, and bars any claim of exemptions out of it. The statute which regulates the manner of asserting a claim to exemption relates alike to executions, ‘ other process and attachments.”' Mansf. Dig., sec. 3006.

As to executions, it is established that the claim may be asserted at any' time before sale (Norris v. Kidd, 28 Ark., 485); and we think it apparent that no distinction was intended or made, either in the constitution or statute, between ordinary executions, “ other process ” and attachments not specific, as to the right of the claimant to assert his claim. A judgment sustaining an attachment and ordering the attached property sold follows an inquiry quite apart from the defendant’s claim of exemption, and is conclusive only as to' the matters involved in the inquiry. We do not mean that the claim of exemptions may not be set up and determined prior to or along with the issue upon the attachment, but simply that an ordinary determination of the latter does not include the former. There is nothing in the record by which, it apnears that the court inquired into or adjudged the defendant’s claim of homestead in the order of sale,- and we-can indulge no presumptions to that effect. There being no-adjudication of this right, the defendant, was at liberty to assert it in a manner provided by statute at any time before-sale, whereupon it becomes the duty of the clerk to issue the supersedeas.

The facts found by the court, upon evidence deemed by us sufficient, sustain the defendant’s claim, and the judgment must be affirmed.