WEITZ v. RICHARDSON

WEITZ v. RICHARDSON
1923 OK 1013
222 P. 977
101 Okla. 81
Case Number: 14513
Decided: 11/20/1923
Supreme Court of Oklahoma

WEITZ
v.
RICHARDSON.

Syllabus

¶0 1. Appeal and Error -- Review of Equity Case--Effect of General Findings.
In an equitable action the presumption is in favor of the finding of the trial court, and it will not be set aside unless clearly against the weight of the evidence. Where the finding of the trial court is general, such finding is a finding of each special thing necessary to sustain the general finding.
2. Homestead--Question for Court or Jury.
Whether a tract of land has been selected and impressed with the homestead character is a question of fact for the court or jury to determine under all the facts and circumstances of the particular case.

P. Mounts, for plaintiff in error.
Wilson & Roe, for defendant in error.

COCHRAN, J.

¶1 On June 14, 1921, R. S. Richardson procured a judgment in the district court of Tillman county, Okla., against T. T. Weitz, and on October 12, 1922, procured the issuance of garnishment summons, which was served on the First National Bank of Davidson, Okla., and rents from certain lands belonging to T. T. Weitz, which were on deposit in the bank, were garnished. Weitz filed his motion to discharge the garnishment, alleging that the rents were derived from his homestead, which he had temporarily rented. This contention was denied, and the issue was tried before the court, and judgment rendered denying the motion to discharge the garnishment and directing that the funds garnished be applied on the judgment in favor of Richardson. From this judgment Weitz has appealed. The plaintiff in error presents this case on the theory that the land from which these rents were derived was the homestead of Weitz, and, being the homestead, rents derived therefrom were exempt. As we view it, a determination of this question is not necessary or proper here, for the reason that whether the land was a homestead of Weitz was a controverted and disputed fact, and, the finding of the court being general, such finding is the finding of everything necessary to sustain the general finding. Johnson v. Johnson, 82 Okla. 259, 200 P. 204.

¶2 In Kerns v. Warden, 88 Okla. 297, 213 P. 70, we held:

"The question as to whether a tract of land has been selected and impressed with the homestead character is a question of fact for the court or jury to determine under all the facts and circumstances of the particular case."

¶3 In Watson v. Manning, 56 Okla. 295, 156 P. 184, the court said:

"It is a condition precedent to entitle one to claim a homestead exemption that the property so claimed be owned and occupied by the claimant as his homestead, or used in connection with his homestead. And the same must have been impressed with the character of a homestead, and no other homestead acquired, if the right to temporarily rent the homestead without changing the character of the same be invoked."