Harris v. Henry , 74 Ark. 504 ( 1905 )

Battue, J.

Appellant correctly states the facts in this case as follows: “The clerk of the Desha Chancery Court issued an execution on a personal judgment which had been entered in that court in favor of appellant against appellee. The sheriff levied the execution on west fractional half of section 33, township 12 south, range 3 west, and other land and certain personal property belonging to appellee, H. L. Henry.

The appellee gave 'notice that he would claim part of the property so levied as exempt. Pursuant to his notice, appellee filed his schedule and affidavit claiming said land and certain of the personalty' as his exemptions.

To this schedule and claim appellant filed his exceptions, assigning three grounds, as follows:

1. That appellee was not a married man or head of a family.

2. That the land claimed as a homestead, viz., west fractional half, section 33, township 12 south, range 3 west, contained more than 160 acres; that it was worth more than $2,500; and that it was not, and never had been, appellee’s homestead or place of residence.

3. That if said land had ever been appellee’s homestead, he had abandoned it; that the schedule did not purport to embrace all of appellee’s property, and that the personal property claimed exceeded in value $500. Appellant, therefore, prayed that a supersedeas be refused. The clerk overruled the exceptions, and issued a supersedeas. Thereupon,, appellant prayed an appeal from the clerk to the Desha Chancery Court. When the court met, appellee moved to dismiss the appeal, which motion the chancellor sustained, and appellant’s appeal from the clerk was dismissed, and the court refused to entertain jurisdiction of the matter.”

Appellant, denied the right of appellee to hold the property scheduled, and insisted that it was subject to execution. The clerk refused to sustain his contention, and granted the super-sedeas. He appealed from this decision to the chancery court. This proceeding amounted to an application to the chancery court for an order quashing the supersedeas and subjecting the property scheduled to sale under execution, or so much thereof as was liable. The name given to it could not change the nature of it, or change the relief sought. The court erred in dismissing it.

It was clearly within the'jurisdiction and power of the court to quash the supersedeas, if it was improperly issued, and to direct the sale of so much of the property scheduled as should be sold, and to direct its officers to do whatsoever should be done to accomplish that purpose. State Bank v. Noland, 13 Ark. 299.

. The judgment of the chancery court is reversed, and the cause is remanded with instructions to the court to proceed in accordance with this opinion.