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Call Now: 904-383-7448In case of a waiver and the levy of an execution, the debtor may select and set apart $300.00 worth of household and kitchen furniture and provisions as free from levy and sale. If, when such selection is made, the plaintiff in fi. fa. shall be of the opinion that said property is of greater value than $300.00, he may indemnify the levying officer and require him to proceed with the levy upon some part of the property or all if it be incapable of division. It shall then be the right of the debtor to make and deliver to the levying officer an affidavit stating substantially that the property selected is not of greater value than $300.00. The levy and affidavit shall be returned to the next term of the superior court of the county of the residence of the debtor and shall be tried as cases of illegality, the only issue being the value of the property selected. The jury may find generally for the defendant in fi. fa., in which case the levy shall be dismissed, or may find specifically what portion of the property is of the value of $300.00, which portion shall be exempted, and the balance shall be sold; provided, however, that the jury or other tribunal trying the issue made by the levy and affidavit may assess damages, not exceeding 25 percent of the value of the property levied upon, against the plaintiff in execution for any levy made not in good faith for the collection of the execution but for the purpose of harassing the debtor.
(Ga. L. 1878-79, p. 99, § 7; Code 1882, § 2039b; Civil Code 1895, § 2864; Civil Code 1910, § 3414; Code 1933, § 51-1102; Ga. L. 1983, p. 1170, § 2.)
- The exemption is limited by amount rather than by the nature of the articles, except under the general term "household and kitchen furniture." Kemp v. Swainsboro Ice & Fuel Co., 47 Ga. App. 99, 169 S.E. 700 (1933).
- It is optional to take either the exemption provided by O.C.G.A. § 44-13-100 or the exemption declared in O.C.G.A. § 44-13-41, but one cannot take both the exemptions. McFarlin v. Reeves, 10 Ga. App. 581, 73 S.E. 862 (1912); Wilbanks v. Wardlaw, 50 Ga. App. 495, 178 S.E. 466 (1935).
- It is optional to take either the exemption provided by O.C.G.A. § 44-13-100, the exemption declared in O.C.G.A. § 44-13-41, but the two exemptions are distinct; as to the $300.00 worth of household and kitchen furniture and provisions allowed by O.C.G.A. §§ 44-13-40 and44-13-41 when properly claimed and set apart in the manner provided by O.C.G.A. § 44-13-42, no waiver of exemption will prevail, but under O.C.G.A. § 44-13-100 a waiver will be effective against any other benefit "provided for by the Constitution and laws of this state." Wilbanks v. Wardlaw, 50 Ga. App. 495, 178 S.E. 466 (1935).
A constitutional homestead set aside only as provided in O.C.G.A. § 44-13-41, and not as provided in O.C.G.A. § 44-13-5, has not been set aside as provided by law. Brown v. Scarborough, 158 Ga. 301, 123 S.E. 605 (1924).
- In order for a debtor and his wife to avail themselves of the exemption provided by O.C.G.A. § 44-13-41, it is not essential that the debtor should have waived his homestead and exemption rights with reference to the debt in question. Kemp v. Swainsboro Ice & Fuel Co., 47 Ga. App. 99, 169 S.E. 700 (1933).
- O.C.G.A. § 44-13-41 does make use of the language "in case of such waiver, and the levy of an execution by an officer of this state, it shall be right," but the reasonable meaning of this phrase must be taken to be that "even in" cases where there has been such a waiver. Kemp v. Swainsboro Ice & Fuel Co., 47 Ga. App. 99, 169 S.E. 700 (1933).
- The exemption of a piano is permissible. Kemp v. Swainsboro Ice & Fuel Co., 47 Ga. App. 99, 169 S.E. 700 (1933).
Cited in Kemp v. Price, 42 Ga. App. 655, 157 S.E. 117 (1931); Sanders v. GMAC, 43 Ga. App. 374, 158 S.E. 646 (1931); Alexander v. Holmes, 85 Ga. App. 124, 68 S.E.2d 242 (1951).
- 21 Am. Jur. 2d, Exemptions, §§ 72 et seq., 143, 177. 40 Am. Jur. 2d, Homesteads, §§ 187, 188.
- Estoppel to claim, or waiver of, homestead by direction of judgment debtor to levy on real estate, 101 A.L.R. 851.
No results found for Georgia Code 44-13-41.