
    HOMESTEAD EXEMPTION — PLEADING.
    [Hamilton Circuit Court,
    January Term, 1898.]
    Cox, Swing and Smith, JJ.
    John Wentzel v. Eliza Hayes et al.
    1. Widow Entitled to Homestead though not having Care and Maintenance of Minor Child.
    A widow is entitled to homestead exemption, under sec. 5441, Rev. Stat., although not having the care, maintenance and custody of a minor child.
    2. Mortgage oe Part oe Homestead Exemption, Effect of.
    A mortgage given by a widow on her eight-twelfths of land does not preclude her from asserting her homestead exemption out of the judgment and mortgage which she held against the two-twelfths interest of others.
    3. Court may Refuse Plea that Judgment is Void for Want of Service, When. ■'
    Where it does not affirmatively appear that service on an answer and cross-petition was not waived or appearance entered, the court may refuse, after judgment, to permit an answer, claiming such judgment was void for want of such service.
    Error to the Court of Common Pleas of Hamilton county.
   Swing, J.

We think the judgment of the court of common pleas should be affirmed.

Eliza Hayes was entitled under sec. 5441, Rev. Stat., to the homestead exemption therein allowed. She was a widow, and as such she was entitled to the homestead exemption, although not having in good faith the care, maintenance and custody of a minor child. These provisions do not apply to a widow.

The mortgage given by her in this case on her interest of eight-twelfths of the land does not preclude her from asserting her homestead exemption out of the judgment and mortgage which she held against the two-twelfths interest of others.

John Wentzel, for the plaintiff in error.

James B. Mason and John R. Holmes, contra.

The court did not err in refusing, after judgment, to permit Burk-ham to file his answer setting up the fact that this prior judgment was void because no service had been had on the answer and cross-petition of Wentzel, for it does not affirmatively appear that service was not waived or appearance entered.

Cox and Smith, concur.  