Russell v. Gilliland

Court of Appeals of Georgia

Russell v. Gilliland

19 Ga. App. 676

CourtCourt of Appeals of Georgia

DecidedJuly 1, 1917

Docket8113

StatusPublished

This text of 19 Ga. App. 676 (Russell v. Gilliland) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Russell v. Gilliland, 19 Ga. App. 676 (Ga. Ct. App. 1917).

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Opinion

Bboyles, P. J.

1. “A homestead which has been regularly set apart can neither be waived nor renounced by the head of the family so as to authorize a levy upon, and sale of, the property so set apart, under an execution issued upon a judgment rendered against him; and if, pending the existence of the homestead, such property be levied upon under such an execution and sold, the sale is void, and a purchaser thereat acquires no title, even though the judgment upon which the execution issued is based upon a promissory note containing a stipulation in which the head of the family does solemnly ‘waive and renounce’ the benefit of the homestead.” Rogers v. Baker, 96 Ga. 800 (22 S. E. 585). In the instant case the “pony” homestead was set apart in 1905, and the “waiver” note was executed by the head of the family in 1914.

2. The accretions of homestead property are exempt from levy and sale. Civil Code, § 3398; Powers v. Rosenblatt, 113 Ga. 559 (3), 561 (38 S. E. 969).

(a) The provisions of code-section 3398, supra, apply to the statutory or “short” homestead as well as to the constitutional homestead. Kupferman v. Buckholts, 73 Ga. 778.

3. The court having required the plaintiff to write from the verdict the [677]*677item of $1.60 interest, the error in the charge, that if the jury found ' in favor of the plaintiff he would be entitled to recover the value of the cows, together with hire and interest, was corrected.

■ Trover; from Catoosa superior court—Judge Fite. August 11, 1916.

W. E. Mann, for plaintiffs in error. M. L. Harris, contra.

4. The general grounds of the motion for a new trial, that the verdict is contrary to law and the evidence, can not be considered, as such grounds require a review of the evidence, and that which purports to be a brief of the evidence shows on its face that it is incomplete, and raises a legitimate inference that it does not contain all the material evidence adduced on the'trial. Under such circumstances, there being no merit in any of the special grounds of the motion for a new trial, the judgment of the lower court must be affirmed.

Judgment affirmed.

Jenkins and Bloodworth, JJ., concur.

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Bboyles, P. J.

1. “A homestead which has been regularly set apart can neither be waived nor renounced by the head of the family so as to authorize a levy upon, and sale of, the property so set apart, under an execution issued upon a judgment rendered against him; and if, pending the existence of the homestead, such property be levied upon under such an execution and sold, the sale is void, and a purchaser thereat acquires no title, even though the judgment upon which the execution issued is based upon a promissory note containing a stipulation in which the head of the family does solemnly ‘waive and renounce’ the benefit of the homestead.” Rogers v. Baker, 96 Ga. 800 (22 S. E. 585). In the instant case the “pony” homestead was set apart in 1905, and the “waiver” note was executed by the head of the family in 1914.

2. The accretions of homestead property are exempt from levy and sale. Civil Code, § 3398; Powers v. Rosenblatt, 113 Ga. 559 (3), 561 (38 S. E. 969).

(a) The provisions of code-section 3398, supra, apply to the statutory or “short” homestead as well as to the constitutional homestead. Kupferman v. Buckholts, 73 Ga. 778.

3. The court having required the plaintiff to write from the verdict the [677]*677item of $1.60 interest, the error in the charge, that if the jury found ' in favor of the plaintiff he would be entitled to recover the value of the cows, together with hire and interest, was corrected.

■ Trover; from Catoosa superior court—Judge Fite. August 11, 1916.

W. E. Mann, for plaintiffs in error. M. L. Harris, contra.

4. The general grounds of the motion for a new trial, that the verdict is contrary to law and the evidence, can not be considered, as such grounds require a review of the evidence, and that which purports to be a brief of the evidence shows on its face that it is incomplete, and raises a legitimate inference that it does not contain all the material evidence adduced on the'trial. Under such circumstances, there being no merit in any of the special grounds of the motion for a new trial, the judgment of the lower court must be affirmed.

Judgment affirmed.

Jenkins and Bloodworth, JJ., concur.

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