Smith v. Exchange Bank

103 S.E. 99, 25 Ga. App. 278, 1920 Ga. App. LEXIS 741

• Court: Court of Appeals of Georgia
• Decided: May 5, 1920
• Docket: 11396
• Status: Published

Opinion

Smith, J,

1. The trial judge did not abuse his discretion in overruling the motion for a continuance; it appearing, on the showing for continuance and the counter-showing, that the case had been continued one or more times for the same reason, and it also appearing that by an order of the court the case had been put on terms.

2. “ A petition for homestead may be amended by adding to the schedule something which has been omitted, but not by striking therefrom any article of property therein set forth. If the applicant has by mistake inserted property belonging not to him but to another, lie should dismiss his application and file another one, omitting such articles of property not belonging to him as were in the previous schedule.” McWilliams v. Bones, 84 Ga. 199 (1) (10 S. E. 723).

3. Under the above ruling the court below should have dismissed the case, and not the appeal. The judgment of the court below is therefore affirmed, with direction that the ease be dismissed on the ground that the petition for homestead had been amended by striking therefrom the real estate set out in the amendment.

Judgment affirmed, with direction.

Jenkins, P. J., and Stephens, J., concur.

2. The schedule of property which the applicant in her petition asked to have set apart as a homestead included several city lots. One of the objections filed by creditors was that the title to one of these lots was not in the applicant, but in an objecting creditor. The applicant amended the application by withdrawing it as to that lot. One of the objecting creditors then filed a motion that the application be dismissed, because the applicant had amended it by striking from it a considerable part of the property.

Max Meyerhardt, for plaintiff in error. T. W. Lipscomb, contra.