Willbanks v. Untriner , 98 Ga. 801 ( 1896 )

Lumpkin, Justice.

The nature of this case will be gathered from the official report.

1. Epon the question that the overruling of a demurrer to a declaration is not a proper ground of a motion for a new trial, see: Griffin v. The Justices, 17 Ga. 96; De Barry-Baya Merchants’ Line v. Austin, 76 Ga. 306; Rogers, adm’r, v. Rogers et al., 78 Ga. 688; Nicholls et al. v. Popwell, 80 Ga. 604. The same thing is true as to a demurrer to an indictment: Flemister v. The State, 81 Ga. 768; Robson v. The State, 83 Ga. 166. These are only instances of the many decisions of this court relating to this matter, and the legal profession should, by this time, understand that the overruling of a demurrer to a declaration is matter for direct exception. It seems that the counsel for the plaintiff in error in the present case did so understand, because they not-only made the overruling of their demurrer to the declaration filed by the plaintiff below a ground of their motion for a new trial, but they also excepted directly to this action of the court in their bill of exceptions. In this, however, they were too late, because the bill of exceptions was not filed within the time allowed them by law for excepting to rulings made at the trial.

2. The rule is well settled that whenever land is'capable of subdivision, and a given portion of it of sufficient value to satisfy an execution can be levied on and sold separately without injury to the balance of the property, it is the duty of the sheriff or other levying officer to pursue this course. But there is no law which makes it incumbent upon the officer to levy upon and sell a fractional undivided interest in realty, the entire title to which is in the 'defendant in execution. The officer cannot, in this way, make the latter and the purchaser at the judicial sale tenants in common.

3. Whether or not the plaintiff’s alleged homestead was lawfully set apart to her seems to have been one of the questions involved in this case; but we cannot pass upon it, for the reason that the record before us contains no copy of any homestead proceedings. While a married woman living with her husband is not, under the present constitution, entitled, as the head of a family, to have a homestead set apart to her out of her separate estate, she may be allowed a homestead out of the same as a person having the care and support of dependent females, if in her case this ground for the allowance of a homestead exists. Johnson v. Little, 90 Ga. 781. Whether the question here indicated arose at the trial of the present action we are, however, unable to say, for the reason above stated.

4. Upon the assumption that the homestead was valid, the mere fact that the party at whose instance it was set apart left this State would not defeat it. An entire abandonment of her domicile in Georgia would. In this case, as in all others where the person suing out the homestead has left this State, the continuing validity of the homestead depends upon the question of domicile; and in determining that question, it should be ascertained whether the residence beyond the limits of this State was intended to be permanent or only temporary.

5, 6. The correctness of the propositions laid down in the last two head-notes is, we think, sufficiently manifest without elaboration. Judgment reversed.