Wentzel v. Hayes

16 Ohio C.C. 110, 8 Ohio Cir. Dec. 756

• Court: Ohio Circuit Courts
• Decided: January 15, 1898
• Status: Published

Opinion

Swing, J.;

Cox and Smith, JJ, concur.

We think the judgment of the court of common pleas should be affirmed.

Eliza Hayes was entitled under section 5441 to the homestead exemption therein allowed. She was a widow, and as such she was entitled to the homestead exemption, although not having in good faith the care, maintenance and custody of a minor child. These provisions do not apply to a widow.

The mortgage given by her in this case on her interest of eight-twelfths of the land does not preclude her from asserting her homestead exemption out of the judgment and mortgage which she held against the two-twelfths interest of others.

The court did not err in refusing, after judgment, to permit Burkham to file his answer setting up the fact tnat this prior judgment was void because no service had been had on the answer and cross petition of Wentzel, for it does not affirmatively appear that service was not waived or appearance entered.

John Wentzel, for the Plaintiff in Error. James B. Mason, and John li. Holmes, contra.