Laning v. Langford Inv. Co., 12540.

• Decision Date: 28 February 1931
• Docket Number: No. 12540.,12540.
• Citation: 36 S.W.2d 1079
• Parties: LANING v. LANGFORD INV. CO. et al.
• Court: Texas Court of Appeals

Page 1079

36 S.W.2d 1079

LANING v. LANGFORD INV. CO. et al.

No. 12540.

Court of Civil Appeals of Texas. Fort Worth.

February 28, 1931.

Appeal from District Court, Wichita County; W. W. Cook, Judge.

Suit by Mrs. R. A. Laning against the Langford Investment Company and others. From an order denying a temporary writ of injunction, plaintiff appeals.

Reversed and remanded.

E. E. Fischer and T. F. Hunter, both of Wichita Falls, for appellant.

Fischer & Fischer, of Wichita Falls, for appellees.

DUNKLIN, J.

This appeal is by Mrs. R. A. Laning, plaintiff in the court below, from an order of the district court denying her a temporary writ of injunction to restrain the sale of an automobile which had been levied on under a writ of execution issued under a judgment theretofore recovered against Mrs. Laning by the Langford Investment Company, who, together with the constable who had made the levy and the attorney of record for the Langford Investment Company, were all made parties defendant.

As a basis for the relief prayed for by the plaintiff, it was alleged that the automobile was exempt from forced sale under the Constitution or statutes, since she was the head of a family.

There is no provision in our Constitution which would render the automobile exempt, and if such exemption obtains it must be by virtue of the provision of article 3832, Revised Civil Statutes 1925, which reads in part as follows:

"The following property shall be reserved to every family, exempt from attachment or execution and every other species of forced sale for the payment of debts, except as hereinafter provided:

"1. The homestead of the family. * * *

"10. One carriage or buggy. * * *"

It is settled by the decisions of this state that an automobile is a carriage within the meaning of subdivision 10 of that article of the statutes.

Hence the only disputed issue involved in this case is whether or not Mrs. Laning was the head of a family.

Upon the hearing of the application for the temporary writ, evidence was introduced which showed that prior to the institution of this suit, the Langford Investment Company had recovered a judgment against Mrs. R. A. Laning for house rent in the sum of $1,200, which was unpaid, and that execution issued on that judgment had been levied on the automobile in controversy, which was a La Salle coupé, and that the same had been advertised for sale under that levy; the suit being brought to restrain such sale.

Aside from the proof of those facts, the only evidence offered upon the hearing consisted of the testimony of plaintiff herself, which may be briefly summarized as follows:

Plaintiff and her husband, R. A. Laning, now deceased, moved to Wichita Falls in the year of 1918, and she has resided there ever since. During their married life they maintained a home in which they lived continuously up to the time of the husband's death. Since the death of the husband plaintiff has never boarded or lived in an apartment but has maintained a home with furniture, which she has occupied as her place of abode. At the time of the husband's death, the couple owned a seven-passenger sedan car, which was used as a family car. After his death, she kept that car and used it as a family car and also in the oil business, in which she was engaged, for a period of two years. She then traded the car for the car in controversy, paying a difference in the trade of $2,500; the purchase price of the new car being $3,000, and the seller taking in the old car at a valuation of $500. Plaintiff and her husband had no children and she is still a widow of R. A. Laning without children. After the burial of plaintiff's husband in September, 1924, her girl cousin came to live with her, but no one else except that girl has lived with her. She then testified as follows:

"This young lady who is my cousin, came to live with me when I brought her back with me when I buried Mr. Laning. That was in September, 1924. She lived with me then, two years. She lived with me until about August or September 1926. I did not say that she did not live with me then until 1930. She was gone for two winters. She came back during the summer of each year. She would come back in the summer and stay with me. Then she would go back to her father and mother and stay during the winter. The last time she came back to stay with me was July 1930. She is living with me now and has been since July, 1930. She is eighteen years old, since last September. At my house she looks after my house and keeps house for me. Her father and mother are living. Her father and mother raised her until she came to live with me in August, 1924. Her father and mother live in Indiana. She is a cousin of mine. She has other relatives. She has two brothers, besides her father and mother. One is sixteen years and the other twenty-nine years of age. The older boy lives in Indiana. She has no uncles that I know of. She has an Aunt. She lives in a soldiers home in Indiana. I do not pay this young lady any wages. She gets her board and dresses and I send her to school. In consideration, she looks after my home. As to when her father became incapacitated so that he could not support this young lady, I could not say. He has never been where he could really support a family. Her mother helped support the girl in 1924. They raised two other children. The older brother is twenty-nine years old, is married and works and supports a family. Her father is not a shiftless fellow, but is not a strong man. He does not work. He lives on a pension. The girls mother is not doing anything. There is no one to support this girl but myself. As to how she came to live with me: well, I have always helped her, even when she was a baby. I have always helped the family. I have always sent clothes and money to help her out. As to who supported her during the two years when she was gone from me, I sent her money. I do not remember how much. I do not remember approximately. I just sent her some money now and then to help her out. She was living in Terre Haute, Indiana with her father and mother. They have a home there. As to why I did not have her come to live with me before Mr. Laning died, was because I was in the office and helping him and just did not do it. I did not bring her down to live with me after Mr. Laning's death to keep me company. That was not the reason. I brought her after his death because I wanted to help her out. I did help her out and wanted to help her out before Mr. Laning died. I am certainly insolvent. I had a deal on the other day and lost the deal because the constable took my car. I did not have the money to get another car any where. It is not a fact that I have a number of diamonds."

The date of the trial was December 31, 1930.

The judgment formerly recovered by the Langford Investment Company against the plaintiff, and under which the car in controversy was levied on, was for rents due the investment company on the house in which plaintiff had resided as a home after her husband's death. No other witness testified in the case except P. P. Langford, the manager of the Langford Investment Company, and his testimony related solely to the judgment which the investment company had recovered against the plaintiff. And no testimony was offered from any source to contradict that of the plaintiff.

The trial judge filed findings of fact and conclusions of the law which appear in the record. The findings of fact so filed embody in substance a recital of the facts so testified to by the plaintiff, except that the court found that "the parents of the girl have a home where they live, and are able to support the said girl." And one of the conclusions of law reached by the judge reads as follows:

"I conclude that under the facts proven and found, plaintiff was not morally bound to support the said cousin so as to entitle plaintiff to the exemption of the said La Salle coupé."

The finding that the parents of the girl are able to support her was a conclusion drawn by the trial judge from the fact, as shown by plaintiff's testimony, that her parents had reared and supported her up to the time she came to plaintiff in September, 1924, and while she had spent two winters with her parents after she had first lived with the plaintiff for two years.

The judgment in favor of Langford Investment Company for $1,200 for rents was rendered on June 9, 1930, and the same was for the unpaid amount of rents due by Mrs. Laning to the Langford Investment Company at the rate of $60 per month from August 30, 1928, to April 30, 1930, a period of twenty months.

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