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Blackwell vs. Broughton et al.

3, 4, 5, 6, 7. The other points are left to stand upon the statement of them in the head-notes.

Judgment reversed.

SAMUEL H. BLACKWELL, plaintiff in error, vs. JOHN A.

BROUGHTON et al., defendants in error.

1. An application for a homestead, alleging that the applicant is the head of

a family consisting of his indigent daughter and her children, dependent upon him, is not demurrable on general demurrer and should not be dismissed; if the allegation be not clear that the daughter was a widow, it

was amendable, and on special demurrer it could have been so amended. 2. It was decided in Marsh vs. Lazenby, 41 Georgia Reports, 153, that the

head of a family consisting of a mother and sisters was entitled to a home

stead; the principle there decided covers, in reason and spirit, this case. 3. On such an application the true issue is whether the applicant was bona fide the head of such a family, whether this widowed daughter was legitimately and honestly, and without regard to this debt, a member of his family, or was fraudulently made a member thereof to avoid the payment of the debts of the applicant; if the former, he is entitled to his homestead; if the latter, he is not; and this issue is for the jury on the appeal from the ordinary.

Homestead. Demurrer. Before Judge BARTLETT. Jasper Superior Court. October Term, 1875.

Reported in the opinion.

KEY & Preston, by JACKSON & LUMPKIN, for plaintiff in error.

C. L. BARTLETT; F. & C. W. JORDAN, for defendant.

JACKSON, Judge.

1. This was an application for a homestead which came up on appeal from the ordinary to the superior court of the county of Jasper. The applicant alleged that he was the head of a family, that the family consisted of “his adult daughter, Nannie A. Bowdin and her three minor children, who are in in

Blackwell vs. Broughton et al.

digent circumstances and dependent upon him for a support; are members of his family and living in his household; have no property and are unable to support themselves by reason of physical inability.” The application containing this allegation was dismissed on general demurrer, the applicant excepted, and the naked question is this: Is a father who has his adult daughter and her three children, all totally dependent upon him for a support, living with him in his house, the head of such a family as, in the sense of the constitution of 1868, entitles him to a homestead? It will be observed that it is not alleged that the daughter is a widow, but she bears a different name from the father, has no property, is entirely dependent on him for support, and the inference is very strong that she is a widow. If she is not, and this were the ground of demurrer, it should have been demurred to specially, and if consistently with the truth it could have been done, the defect was curable by amendment. We assume then, that she is a widow, and consider this the question: Is a father, who has living in his house with him a widowed daughter and her infant children, entitled to a homestead?

2. It was unanimously ruled by this court in Marsh vs. Lazenby, 41 Georgia Reports, 153, that the unmarried head of a family, consisting of his mother and sisters, was entitled to a homestead. We think that case, in principle, covers this. It would be difficult to show to any rational mind and sound judgment, that a man is under greater obligation to support in his house, his mother than his daughter, and whilst the tie between brother and sister is close, that between parent and grand-children is still closer. It is true, that Marsh vs. Lazenby is put mainly upon the obligation to support the mother, yet the head-note and the facts show that the sisters were also included in the family of which the brother was the head; nor does it appear in that case that the mother or sisters were unable to maintain themselves. In the case at bar, it does appear that they are indigent, incapable of work from physical inability, and wholly dependent upon the head of the family. In so far as a daughter is as near to one's heart as

Blackwell vs. Broughton et al.

his mother, and grand-children nearer than sisters, and those destitute of property and unable to work, more appropriately within the beneficent principle on which the constitution provides a homestead, this case is stronger than Marsh vs. Lazenby. If the family in whose behalf a homestead can be set apart must consist of those whom the head is under the strictly legal obligation to support, the father is as much bound to maintain in his house his daughter, as his mother; the former is more naturally a member of his household where she was born, than the latter, who raised him under a different rooftree, that of his father, and only on the death of her husband, lived with the son. The whole court is of opinion that the case cited covers this, and our judgment is unanimous.

3. Of course the applicant must be the bona fide head of this family; that is to say, it must appear to the satisfaction of the jury, on the trial, that the daughter and her children were legitimately members of the family, had been so long enough and under circumstances to show that they were not brought into the household of the applicant on purpose to avoid the payment of debts, but in good faith and honestly were members of the family,

For myself, independently of the case in 41st Georgia Reports, I think daughters of any age living with the father bona fide in his house, or little grand-children living there, and dependent upon the grand-father, whether the mother be living or dead, would constitute a family in the sense and spirit, in the true intent and nieaning of the constitution of 1868; and such a head of such a family, bona fide constituted, and not gathered for the moment to defraud creditors as a mere trick or sham, would be entitled to bis homestead. In the meaning of the constitution, it might well, I think, be held that children included grand-children, and if they lived with the grand father and were dependent upon him, they would be as much his family as his own children. Nor do I think that the framers of the constitution meant to break up a man's family just as soon as his wife died and his children became of age. If they had all left him, their voluntary dePhillips vs. Thurber & Company. parture would have broken it up; if they remained with him, especially daughters dependent upon him as much when twenty-one as when twenty, they would still be, in the sense of the constitution, a legitimate and component part of his family, and he would be entitled in law to a home for himself as their head, and for them as his household.

Let the judgment be reversed.

WILLIAM R. PHILLIPS, plaintiff in error, vs. H. K. THUR

BER & COMPANY, defendants in error.

1. If a garnishee, without objecting to the jurisdiction, submits to answer out

of the county of his residence, and within that where his creditor, the debtor in the principal case, resides and is sued, neither the latter, nor a claimant of the fund who has dissolved the garnishment by giving bond and security under the act of 1871, (Code, section 3541,) can urge the

garnishee's non-residence, by plea to the jurisdiction, or otherwise, as a means

of defeating the garnishment proceeding. 2. On the trial of a traverse, filed by the claimant, to the garnishee's answer,

the issue is between the claimant and the plaintiff; the garnishee is no party to that issue, and his declarations are not admissible evidence for the

claimant. 3. Bond of the claimant with condition to be void if he shall pay to the

plaintiff the judgment which the plaintiff may recover in the suit, with costs, is in substantial compliance with the statute. Such bond, with approved security, dissolves the garnishment; and judgment may be entered thereon, instanter, for the amount admitted in the garnishee's answer to be due from him to the defendant in the principal suit, when there is a general verdict of the jury against the claimant on his traverse of such answer.

Garnishment. Jurisdiction, Evidence. Before Judge HOPKINS. Fulton Superior Court. October Term, 1874.

Reported in the opinion.

THRASHER & THRASHER, by brief, for plaintiff in error.

D. F. & W. R. HAMMOND, for defendants.

VOL, LVI. 26.

Phillips vs. Thurber & Company.

BLECKLEY, Judge.

After the service of summons of garnishment, a stranger came in, under the act of 1871, (Code, section 3541,) and, as claimant of the fund sought to be reached by the garnishment, filed his bond in substantial compliance with the act. Subsequently the garnishee answered, admitting himself indebted in a specific sum to the defendant in the suit wherein the

garnishment issued. The claimant traversed the answer. He also filed a plea to the jurisdiction of the court on the ground that the garnishee was not a resident of the county but of another county. The defendant in the principal case filed a similar plea. Both these pleas were, on motion of the plaintiffs, stricken by the court. The issue formed by the claimant's traverse of the garnishee's answer, was tried, and the jury returned a verdict, generally, in favor of the plaintiffs. Judgment was thereupou entered against the claimant and the surelies on his bond, for the amount admitted in the answer of the garnisbee to be due from him to the defendant, bis creditor.

1. It was not error to strike the pleas. The garnishee had answered, and thereby waived his privilege of being called to answer only in his own county. He answered in the county where his creditor resided and was sued. He answered to the court in which that suit was pending, and to which the garnishment was returnable. None of the proceedings disclosed the fact that the garnishee was a non-resident, and he took no advantage of that or any other fact to protect himself against the jurisdiction. His non-residence was in no way alleged upon the record until his answer had been on the file some weeks, and then only by the two pleas we are considering. He has made no complaint of the jurisdiction; and we cannot doubt that after he appeared and answered, his non-residence would count for nothing in the subsequent proceedings: Code, section 3461.

2. The garnishee answered that he was indebted to the defendant. The claimant's position was that the garnishee's liability was to him and not to the defendant; for the reason

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