Durke v. Crane
Durke v. Crane
Opinion of the Court
Plaintiff levied upon three horses. Defendant claimed two of the horses, without specifying which two, as exempt from seizure under the homestead law, and obtained judgment accordingly. Plaintiff acquiesced in the judgment; but difference arose as to which two of the horses defendant should have. To settle the matter, defendant took a rule, and from a judgment in his favor on this rule the present appeal is taken.
Motion is made to dismiss on the ground that the matter is not a “suit involving a homestead exemption,” within the meaning of the Constitution conferring special jurisdiction upon this court in such eases.
The judgment, in its effects, secures to the appellee the benefit of the homestead law. Therefore it “involves a homestead exemption.”
Besides, it is merely interlocutory and incidental, interpreting and completing the main judgment, and, as such, follows its principal. Demarest v. Beirne, 36 La. Ann. 751; State ex rel. Suberville v. Judge, 45 La. Ann. 1319, 14 South. 118.
The motion is overruled.
Opinion on the Merits
On the Merits.
Defendant in execution complains that one of the horses proposea to be released is not a work horse, but an unbroken two year old, “roaming wild on the prairies.” As the facts have not been brought up, we cannot know whether this complaint is borne out or not. If it is, then the judgment .is correct, for the homestead law calls for work horses, not unbroken colts. The presumption is that the judgment, was rendered on proper evidence. Succession of Moore, 42 La. Ann. 332, 7 South. 561; Goodrich v. Newell, 43 La. Ann. 378, 8 South. 921.
After plaintiff in rule had almost completed his testimony, defendant in rule asked that the testimony be reduced to writing, and the court refused. The ruling was correct. It would not have done to have taken down only part of the testimony, and neither party had the right to have the trial begun over again. The remedy was to procure a statement of facts. Code Prae. art. 602.
Judgment affirmed.
Reference
- Full Case Name
- DURKE & BROUSSARD v. CRANE
- Cited By
- 7 cases
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- Syllabus
- APPEALABLE ORDEE — HOMESTEAD EXEMPTION-APPEAL — REVIEW. 1. When three horses have been seized, and judgment has been rendered ordering two of them be released as exempt from seizure under the homestead law, without specifying which two, and a rule has been taken to supplement the judgment by deciding which two of the horses should be released, held, that the judgment on this rule is appealable to the Supreme Court, it involving a homestead right, and it being, besides, merely incidental to the main judgment, which admittedly was appealable to the Supreme Court, as involving a homestead right. 2. If the judgment appealed from was founded on the fact that one of the horses was not a work horse, but an unbroken two year old, it was correct, for the constitutional exemption calls for work horses, not unbroken colts. 3. The judgment appealed from, in so far as founded on the facts, cannot be reviewed by this court in the absence of the facts, and can only be affirmed as presumably correct. 4. Either none or all of the testimony must be taken down in writing, and the court may refuse the request to have the testimony reduced to writing, if not made at the beginning of the trial. (Syllabus by the Court.)