
    Kuhn v. Nieberg.
    
      B. B. Marshall, for plaintiff in error.
    
      Isaiah Pillars, with whom were F. C. Layton and S. B. Mott, for defendant in error.
    Error to the District Court of Auglaize County.
   By the Court.

On the twenty-first day of March, 1877, Theodore Nieberg, assigned in trust, for the benefit of his creditors, under the insolvent laws of Ohio, all his property, both • real and personal, saving and reserving all property to which he might be entitled under the homestead and exemption laws of this State. The appraisers appointed by the probate court set off to the assignor the tools and implements necessary for carrying on his business as a photographer, but set off to him no homestead, or anything in lieu of a homestead. Before the sale of any of the real estate assigned, the assignor, a resident of Ohio, the head of a family, and not the owner of a homestead, notified the assignee of his selection of certain lands in lieu of a homestead, under the act of February 27, 1873 (70 Ohio L., 51), and asked that the same be set off to him. This notice, by the assignor, making his selection, was disregarded by the assignee, who proceeded and sold said lands. A motion was made in the probate court that there be allowed to the assignor, out of the proceeds of the sale of said lands, the sum of five hundred dollars, in lieu of a homestead or set-off. The motion was sustained, and the probate court ordered the allowance to be made. From this order, the assignee appealed to the court of common pleas, which affirmed the judgment of the probate court; and the district court, on petition in error, affirmed the judgment of the common pleas.

Held: That the probate court had jurisdiction over the subject matter, and had legal power to order the sum of five hundred dollars to be paid to the assignor out of the proceeds of the sale of said lands, in lieu of a homestead or set-off, under the exemption laws of Ohio.

Judgment of the district court affirmed.  