McMichael v. Grady

Citations

• 34 Fla. 219

Syllabus

<p>HOMESTEAD EXEMPTION — EQUITY JURISDICTION OVER — WAIVER OP EXEMPTION RIGHT — COURT COMMISSIONER’S POWER TO GRANT INJUNCTION-INJUNCTION WITHOUT BOND.</p> <p>1. Under Chapter 3346, laws approved March 7th, 1881, entitled “An-Act to Enlarge the Equity Jurisdiction of the Circuit Courts,” our courts of equity are clothed with full and complete jurisdiction over the matter of the homestead and exemptions allowed by the Constitution and laws; not only to adjudicate as to the rights of parties thereto, but to control and direct the-setting apart and allotment thereof; and to restrain interference-therewith or sale thereof under any inhibited process of law;; and to pass upon and adjudicate the propriety of any exception set apart by any officer, and to rectify it if improper.</p> <p>2. Where personal property that is exempt from forced sale to the* head of a family under our Constitution is simply levied upon' by attachment or other process of law, the mere silence or-f ailure of the party entitled to such exemption to assert or-claim it, until there is an actual attempt at forced sale of such property under the process of some court, can not constitute a waiver of the right or work an estoppel to-its assertion when the inhibited forced sale is actually attempted.</p> <p>3. During the absence of the Circuit Judge from the county where-the bill is pending, court commissioners, appointed under the-provisions of our Constitution, have the authority to grant an injunction in any cause in which a Circuit Judge could have-granted it if present.</p> <p>4. Under our statute, where summary process by injunction is-prayed, and the bill justifies it, and affidavit shall be made of the truth of the statements of the bill, and that the complainant is unable to give bond of indemnity or other security, if the-statements of the bill and accompanying affidavit shall appear by ex parte evidence to be true to the Chancellor or Court Commissioner to whom the application is made, it is not