McMillan v. Mau

The opinion of the court was delivered by

Scott, J.

Appellees move to dismiss the appeal herein for various reasons. The only one that seems to need •consideration is as to whether the notice of an appeal was sufficient.

It appears that the notice was given in open court within the time allowed by law, but at a subsequent term of the court. It does not appear that appellees were present, and they contend that notice should have been served upon them to appear, as the appeal notice was not given at the term of court when judgment was rendered. We do not think the point well taken, and hold that the notice was sufficient under the law. The motion is therefore denied.

This case comes here upon an agreed statement of facts.

Appellant is the widow of James McMillan, who at the time of his death owned certain lands in Pierce county. He left several minor children. While his estate was-being administered upon in the probate court, appellant petitioned said court to set aside a homestead under \ 1460 of the code, as subsequently amended in the laws of 1885-6, at page 170.

It appears that appellees obtained a judgment against James McMillan and filed a transcript thereof in tbe auditor’s office, and that the same became a lien, generally, upon his real estate under § 321 of the code; that after said lien attached said James McMillan, with his family, moved upon the land which appellant petitioned the probate court to set aside as such homestead; that the family has since continued to reside thereon; and that no claim of a homestead had been made prior to the filing of said petition.

Appellees filed objections to the allowance of such homestead, setting up their judgment lien, and maintaining that as the lien was obtained before McMillan moved upon the land, or took any step to claim the same as a homestead, that the lien takes precedence of appellant’s claim. The probate court sustained this view, and refused to set the same aside. An appeal was taken to the district court, where the decision of the probate court was sustained, and an appeal was then taken to this court.

We think that under the laws relating to the selection of homesteads, the action of the probate and district courts was erroneous; that the obtaining of a general judgment lien does not cut off the subsequent selection of a homestead at any time before sale.

Therefore the judgment is reversed, and the cause remanded for further proceedings in accordance with this opinion.

Andebs, C. J., and Hoyt, Stiles and Dunbar, JJ., concur.