McDowell v. His Creditors

The Court. Upon further consideration of this cause in Bank we are satisfied with the conclusion reached by Department One in its opinion filed March 2, 1894, and, for the reasons stated in said opinion, the judgment and order appealed from are affirmed.'

The following is the opinion of Department One above referred to:

Belcher, C. This is an appeal by J. E. McDowell, an insolvent debtor, from an order refusing to set apart to him certain real property as a homestead.

[266]The appellant was adjudged to be an insolvent debtor on the twenty-first day of January, 1893, by the superior court of Siskiyou county. At that time he was the owner of the property in question, which consisted of certain land and the building thereon in the town of Sissons. Ten days later he filed a petition asking to have the property set apart to him as a homestead. The application was opposed by some of his creditors, and, after a hearing, was denied by the court.

The findings of the court were, in substance, as follows: During the year 1886 appellant was engaged in conducting a hotel and boarding-house at McCloud, and, in the spring of 1887, at the request of friends, he erected the said building at Sissons, for the special purpose of boarding and lodging railroad men and the public generally. As first constructed, the building consisted of a bar-room, office, dining-room, and eight sleeping-rooms, but during the year it was enlarged somewhat. A large sign was placed upon it designating it as the “El Monte Hotel,” and by that name it was advertised in the newspapers and by cards. From the time of its completion in the spring of 1887 until June 12,1890, appellant used the said building primarily as a hotel. For the purpose of conducting the same as a hotel he employed chambermaids, cooks, and waiters, and his wife superintended the chamber-work and dining-room, and he had general supervision, and conducted a bar in the house. His wife died in August, 1889, at the city of Los Angeles, leaving a female child, who was subsequently taken to Sissons and kept in the “El Monte” for about two months and then returned to Los Angeles. On November 20, 1889, appellant made and filed for record a declaration of homestead upon the said premises, and the same was duly recorded in the office of the county recorder. On June 12, 1890, appellant leased the whole of the said premises as a hotel for the term of one year, and did not in the lease reserve any portion thereof for his own use.