Clark v. Vitz, 13644.

• Decision Date: 12 October 1945
• Docket Number: No. 13644.,13644.
• Citation: 190 S.W.2d 736
• Parties: CLARK v. VITZ.
• Court: Texas Court of Appeals

190 S.W.2d 736

CLARK v. VITZ.

No. 13644.

Court of Civil Appeals of Texas. Dallas.

October 12, 1945.

Rehearing Denied November 16, 1945.

Appeal from District Court, Dallas County; Jeff D. Stinson, Judge.

Suit by Hugo J. P. Vitz against C. W. Clark and another to enjoin an execution sale. From a judgment for plaintiff, named defendant appeals.

Affirmed.

J. Lee Zumwalt, of Dallas, for appellant.

Earl A. Forsythe, of Dallas, for appellee.

LOONEY, Justice.

On December 27, 1944, the appellant, C. W. Clark, caused the Sheriff of Dallas County to levy an execution upon, and advertise for sale, January 15, 1945, a certain house-trailer belonging to Hugo J. P. Vitz, appellee herein, who brought this suit against Clark and the Sheriff seeking a permanent injunction preventing sale of the property levied upon; also future levies thereon. The case was tried without a jury and resulted in judgment in favor of appellee granting the injunctive relief sought, from which Clark alone appealed.

The case is before us without a statement of the facts; however, on request therefor by appellant, the court filed rather elaborate findings, in substance as follows: That appellee was a married man, head of a family consisting of himself, wife and daughter, and was such during the entire period involved herein; that the housetrailer levied upon was built by appellee in 1940, size 16' × 8', of the reasonable value of $600; was equipped with two wheels and could be attached to the rear of an automobile or truck and moved from place to place over streets and highways; that it had windows and doors, was equipped with washbasin, water tank, shower, numerous electrical outlets and fixtures, and a cupboard; that prior to November 19, 1942, it was used by appellee and family for the carriage of persons and property while traveling over the State, and on occasions was placed on vacant lots and there used and occupied by appellee and his family as their home.

The court concluded that the trailer was exempt from levy and sale under execution, within the meaning of secs. 9 and 10 of Art. 3832, R.C.S. These sections reserve to every family, exempt from attachment, execution, and every other species of forced sale for the payment of debts (sec. 9) two horses and one wagon, and (sec. 10) one carriage or buggy.

The court further found that about the 19th day of November, 1942, appellee purchased a lot in Highland Park, Dallas County, upon which was a brick veneer dwelling consisting of living room, dining room, kitchen, breakfast room and several bedrooms; that it was acquired by appellee for the purpose of a homestead for himself and family and has continuously been so used since that date; that after acquiring said lot, appellee placed thereon the house-trailer in question—alongside the residence, about 25 feet therefrom; set it on four wooden blocks; furnished same with electrical service by running a wire from a room in the residence to a connection with various plugs and outlets in the trailer to which were attached lights and electrical appliances; equipped same with a desk, some chairs, cot, a shower, washbasin and water tank; that appellee and members of his family took naps therein, used it as a den, office, and library; did reading there, kept records, and appellee did necessary studying for teaching classes in the technical high school of the City where he is employed as a teacher; also used the place for drafting work which he did during holidays and off periods for different companies, including Atlas Metal Works; that appellee had prepared to connect same with the water service in the residence so as to furnish a permanent supply of water; found specifically that said house-trailer has been used by appellee and members of his family as an adjunct to, and as a part of their homestead, for comfort and convenience; that they had so used and claimed it from the date same was placed on the homestead lot on or about November 19, 1942. The court's conclusion, based on the findings just stated, was that the trailer was a part of appellee's homestead and exempt from forced sale under execution, under Art. 16, sec. 49 of the Constitution of the State, Vernon's Ann.St. and Art. 3833, R.C.S. The court also concluded that, by attaching the trailer to the residence, as set out above, appellee did not lose the right to claim the trailer as exempt from forced sale as a vehicle, under secs. 9 and 10 of Art. 3832, R.C.S. Hence the court concluded that appellee could claim either or both of said exemptions.

The questions hereinafter discussed are properly presented.

If appellee had not waived or abandoned exemption of the trailer from forced sale as a vehicle, under secs. 9 and 10, Art. 3832, R.C.S., by attaching it to and using it as a part of his residence, we think, in view of the liberal interpretation given...