Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1909-03-20

fall.
Held, for reasons stated in the
opinion, that none of such grounds
are tenable, and, x,
Held further, that no valid ground
is disclosed in the record warrant
ing a dissolution Of such attachment.
((Syllabus by the court).
Appeal from district court, Suits
man county; Hon. e. T. Burke, J.
Action by John U. 'Hemmi against
Alzina r. Grover. From an order
dissolving an attachment, plaintiff
appeals.
Reversed.
John U. Hemmi, pro Sc.
Alfred Zuger, for respondent.
Opinion by Fisk, j. All concur.
Lucy A. Holcomb, Guardian of EN-
ma j. Holcomb, Minor, Appellant,
vs.. Edward j. Holcomb ct al, Re-
spondents.
1. BY section 5049, revised codes,
1905, the homestead of every head of
family, not exceeding certain
value and designated extent terri
tory, is made exempt from judgment
lien and from execution or forced
sale, except as otherwise specially
provided; and by section SOTO, the
phrase "head Of family is defined
to mean: II. The husband or wife
when the claimant is a married per-
son. 2. Every person who
has resided on the premises with
him or her and under his or her care
and maintenance, either .(a) His or
her child or the child Of his or her
deceased wife or husband, whether
by birth or adoption. (b( A mi
nor brother or sister, or the minor
child of a deceased brother or sister.
(c) A father. mother, grandfather
or grandmother. (d) The father or
mother, grandfather or grandmother
or deceased husband or wife. (e)
An unmarried sister or any other
relatives mentioned in this section
who have attained the age of ma
jority and are unable to take care of
or support themselves"
Held: That a divorced husband
who, by; the decree Of divorce, has
been deprived of the custody Of his
minor children and who, by such de-
cree, is required to- pay to the moth
er stated sum for the support and
education OF such children, d which
allowance is, by the decree, Smade4sa
lien upon the real property thereto
fore used as the homestead, is there
after no longer the head of a family,
and is not entitled to a homestead
exemption when he does not have
residing upon the premises with him
and under his care and maintenance,
one or more Of the persons mention
ed in subdivision 2, section 500
aforesaid. "z~4Es zx&,~<Z
2. Section SOIL, r.. c., 1906, pro-
vides that, '.Upon the death OF, a per-
son in whom the title to real prop
erty, constituting Of a homestead as
defined in. this chapter, is. vested
a homestead estate in such real
property shall survive, descend and
be distributed to the persons and in
the order following: I.
Il. To the surviving husband or
wife for life; or,
"2. There being no surviving hus-
band or wife, to the decedent's
minor child or children until the
youngest attains majority; or,
"3. The surviving husband or wife
dying before, then thereafter to the
decedent's minor child or children
until the youngest attains majority"
Held, constituting the above section,
that when the decedent, at the time
of nis death, was not entitled to a
homestead exemption, no homestead
estate can survive, descend or be dis
tributed to any of the persons there
in mentioned; hence, the district
court. under the facts, properly re-
versed the order of the county court
granting the petition of appellant to
set aside certain real property there
in mentioned as the homestead of
decedent's minor child.
(Syllabus by the COURT. .
Appeal from district court, Barnes
county; Hon. =. T. Burke, J. :. /
Action by. Lucy A. Holcomb. as
guardian Of Emra J. Holcomb, mi
nor, against Edward J. Holcomb ct
al. From Judgment In defendants
favor. plaintiff appeals. ,..ss.. H.. 4
I Affirmed. IL. .
I Page & Englert, for appellant.
Herman Winterer and D. s. Ritcn-
ie, for respondent. ss