Choice v. Charles

The opinion of the Court was delivered by Moses, C. J.

It appears from the brief that the appellant seeks an exemption of certain property from liability to levy and sale under the execution of the respondent, Choice, which issued on a judgment obtained February 1, 1867, through an alleged assignment of homestead in January, 1870, on a subsequent judgment in favor of one Hamilton. At that time the only legislation “to enforce the provisions of the Constitution” in relation to the matter of homesteads was that contained in the Act of 1868, which is found in General Statutes, page 475. By this, not only is the mere formal mode and manner of the assignment to be regulated and governed, but its validity, as an existing right, must depend on its conformity with all the requisitions therein prescribed.

The argument of the counsel for the motion proceeds upon the assumption that the appellant, if he had proposed to contest the allotment, was bound to “resist it in the manner prescribed by the statute, that is, to file his exceptions within ten days.” We have not been referred to any statutes, and on very full examination find no such condition demanded by any Act of the General Assembly at the time of the assignment of the homestead by the Commissioners. The Act of 1868 requires the assignment and process to be returned by the officer “for record in Court; and if no complaint be made by either party, no further proceedings shall be had against the homestead.” It would thus appear that not even the parties to the process through which the assignment is to be made are bound by any action under it until it is returned “for record in Court.” Here it is sought to affect the judgment creditor', who was no party to the proceeding, because of notice of the assignment, which had not even, at the hearing below, been returned “for record in Court.” Against what was he to aver? To whom was he to submit his objection? How was he bound by an outside proceeding, the force of which could have no effect on his lien until submitted “for record in Court?” Until then it is not easy to perceive how his “complaint” could be entertained. The judgment of the respondent, recovered before the Constitution of 1868, was not affected in its general lien on the property of the appellant by the homestead provisions of that instrument.— Gunn vs. Barry, 15 Wall., 610 ; Cochran vs. Darcy, 5 S. C., 125. A right might be lost by not interposing a constitutional objection, and thus permitting a judgment *173 to be obtained, which would operate to bar it; but, as we have said at this term, in Ryan vs. Pettigrew, “it must be by judgment, acting directly on the point in issue,” and, we may add, necessarily affecting the party who, with full opportunity, failed to resist it. The case, in its general bearing, is so alike to the one before us that we shall forbear to do more than refer to it.

The motion is dismissed.

Wright, A. J., and Willard, A. J., concurred.