Rutherford v. Wright

41 Ga. 128

• Court: Supreme Court of Georgia
• Decided: June 15, 1870
• Status: Published

Opinion

WARNER, J.

The second section of the Homestead Act pr&vides, tha’t every person seeking the benefit of that Act shall make out a schedule and description of the personal property claimed to be exempt under the Constitution, from levy and sale, and hand the same to the Ordinary of the county in which the applicant resides, etc. The application for a homestead must, ^therefore, be made to the Ordinary of the o county in which the applicant resides. It appears from the record in this case, that the application for the homestead was made to, and allowed by, the Ordinary of Bibb county. On the trial of the case in the Court below, the plaintiff in the judgment offered to prove and show, that at the time of the application for, and approval of the Homestead by the Ordinary of Bibb county, neither the applicant therefor, nor her husband, were residents of that county, and had not been for several years.

This evidence, so offered, the Court rejected, to which the plaintiff excepted, and now assigns the same for error here. In our judgment, the evidence offered should have been received for the purpose of showing that the Ordinary of Bibb county had no jurisdiction to hear and approve the application for the homestead exemption. The judgment creditor was no party to the proceeding before the Ordinary, and had the right to attack it whenever it interfered with his rights, for want of jurisdiction of the Ordinary of Bibb county, to hear and approve the application for the homestead exemption.

Let the judgment of the Court below be reversed.