Bell v. Greathouse

• Decision Date: 01 February 1899
• Citation: 49 S.W. 258
• Parties: BELL, Sheriff, et al. v. GREATHOUSE.
• Court: Texas Court of Appeals

49 S.W. 258

BELL, Sheriff, et al. v. GREATHOUSE.

Court of Civil Appeals of Texas.

February 1, 1899.

Appeal from district court, Hill county; J. M. Hall, Judge.

Suit by J. A. Greathouse against Tom Bell, sheriff, and others, to enjoin a sale under an execution levy. From a judgment for plaintiff, defendants appeal. Reversed.

On the 26th day of August, 1897, the appellant the Taylor Paint & Oil Company filed its suit in the county court of Hill county, Tex., against J. A. Greathouse & Co., a firm at said date composed of appellee and one J. F. Pate, said suit being No. 1,665 on the docket of said court. Appellant's cause of action in said cause No. 1,665 was based upon two promissory notes executed by said J. A. Greathouse & Co. to appellant. At the date of the filing of said suit No. 1,665, the plaintiff therein, who is appellant in this suit, caused to be issued a writ of attachment, directed against the property of J. A. Greathouse, the appellee herein, which writ of attachment was on the 26th day of August, 1897, executed by the sheriff of Hill county, Tex., by levying upon the property in controversy in this suit, belonging to the appellee, J. A. Greathouse. On the 16th day of November, 1897, the appellant recovered judgment against the defendants J. A. Greathouse & Co. for the sum of $298.41, with interest thereon at the rate of 6 per cent. per annum from said date, and all costs in said cause incurred. The issuance and levy of said attachment being duly noted in said judgment, the plaintiff in said cause No. 1,665, and who is the appellant herein, on the 16th day of December, 1897, caused to be issued on said judgment rendered in said cause No. 1,665 an execution, which was by the sheriff of Hill county, Tex., levied upon the land in controversy in this suit. On the 5th day of January, 1898, Tom Bell, sheriff of Hill county, Tex., advertised said property to be sold on the 1st day of February, 1898, under and by virtue of said execution. On the 27th day of January, A. D. 1898, J. A. Greathouse, the appellee herein, filed his petition in the district court of Hill county, Tex., praying for an injunction restraining the said Tom Bell, sheriff of Hill county, Tex., from selling said lot of land as advertised, in satisfaction of the judgment which had been rendered in favor of this appellant in cause No. 1,665 in the county court of Hill county, Tex., against the said J. A. Greathouse & Co.; the said appellee in said petition claiming the land in controversy in this suit was his homestead, and, as such, was exempt from sale under execution for the satisfaction of the judgment obtained against said J. A. Greathouse & Co. in cause No. 1,665, in favor of this appellant; which said petition was, on the 28th day of January, 1898, temporarily granted by the Honorable J. M. Hall, judge of the Eighteenth judicial district of Texas, at chambers, until further orders of said court. On the 26th day of February, 1898, the appellant filed its original answer, containing a general demurrer, general denial, and specially answered, setting out the facts (1) that appellee, plaintiff in the court below, had owned said lot for about three years prior to the time the same was levied upon by attachment in said cause No. 1,665 in the county court, and, during the time that appellee had owned the same, he had never occupied the same as a homestead, nor had he by any act of preparation shown a bona fide intention to dedicate said property as a homestead, and had never put any improvements on same since he owned it; (2) that, about one year prior to the levying of the attachment issued out of the said cause No. 1,665 on said lot, appellee, who was plaintiff in the court below, had left the city of Hillsboro, where said lot was situated, with the intention of permanently abandoning same as his place of residence; that plaintiff, who is the appellee herein, advertised said lot for sale, and was trying to sell the same, at the date of the levies of said writs of attachment and execution thereon in said cause No. 1,665. Upon which said pleadings, this cause was, on the 7th day of March, 1898, tried, without a jury, before the court, which said trial resulted in the court's rendering judgment in favor of the plaintiff.

There is no statement of facts in the record, but the following are the facts as found by the trial court: "The court finds that on the 28th day of August, 1897, the defendant the Taylor Paint & Oil Company filed its suit in the county court of Hill county, Tex., against J. A. Greathouse & Co., a firm at said date composed of plaintiff herein and one J. F. Pate, said suit being No. 1,665 on the docket of said court; that the plaintiff's cause of action in said suit No. 1,665 was based upon two certain promissory notes, executed by said J. A. Greathouse & Co. to said Taylor Paint & Oil Company; that, at the date of the filing of said suit No. 1,665, the plaintiff therein caused to be issued a writ of attachment directed against the property of ...