40-108. Homestead; selection; hearing.

At the hearing the court, upon proof of the service of such application and notice, shall determine whether or not such land is subject to the homestead exemption. If it is not, the court shall dismiss the application. If it is, the court shall further determine: (1) The extent and value of the homestead; and (2) if of greater value than the homestead exemption, whether or not the land claimed as a homestead can be divided without material injury. In the event the land which is determined by the court to be subject to the homestead exemption has already been sold on execution by the sheriff, the sale shall be set aside and the judgment creditor shall be assessed the costs of the sale and of the hearing, unless such land was sold for more than the homestead exemption.

Source:Laws 1879, § 8, p. 59; R.S.1913, § 3083; C.S.1922, § 2823; C.S.1929, § 40-108; R.S.1943, § 40-108; Laws 1947, c. 153, § 4, p. 421.