Smith v. Zachry

49 S.E. 286, 121 Ga. 467, 1904 Ga. LEXIS 198

• Court: Supreme Court of Georgia
• Decided: December 12, 1904
• Status: Published

Opinion

Simmons, C. J.

This case is controlled by the decision in McKenney v. Cheney, 118 Ga. 387. Judgment affirmed.

All the Justices concur.

Levy and claim. Before Judge Freeman. Troup superior court. May 5, 1904.

On October 17, 1898, upon notes in which the right to homestead and exemption was waived, Zachry obtained judgments against Smith, and the executions that issued thereon were levied, November 12, 1898, on certain land. On October 12, 1898, Smith filed his petition to be adjudged a bankrupt, and a'trustee in bankruptcy was appointed. Smith claimed the land so levied on' as an exemption, and it was set apart to him as such by the trustee, and this was allowed by the bankrupt court. No homestead or exemption proceeding was taken before the ordinary of the county. In due time Smith was discharged in bankruptcy. Zachry did not prove his claim in the bankrupt court. Upon these facts the judge of the superior court held tire property subject to the executions, and Smith excepted. Counsel cited Ga. B. 118/387; 115/684; 79/79; 69/842; 65/427, 684; 55/579; 53/485; 47/453.

E. T. Moon, for plaintiff in error. S. A. Sail, contra.