Parsons v. McKinney

• Decision Date: 19 January 1911
• Citation: 133 S.W. 1084
• Parties: PARSONS et al. v. McKINNEY.<SMALL><SUP>†</SUP></SMALL>
• Court: Texas Court of Appeals

133 S.W. 1084

PARSONS et al. v. McKINNEY.^†

Court of Civil Appeals of Texas.

January 19, 1911.

Rehearing Denied February 2, 1911.

Appeal from District Court, Tyler County; W. H. Pope, Judge.

Action by John McKinney against E. T. Parsons and others. Judgment for plaintiff, and defendants appeal. Affirmed.

Thos. J. Baten, for appellants.

PLEASANTS, C. J.

This appeal is from an order of Hon. W. H. Pope, judge of the district court of Jefferson county, made in chambers, granting a temporary injunction restraining the sale of a tract of land in Tyler county belonging to appellee and claimed to be his homestead. Appellant E. T. Parsons, sheriff of Tyler county, levied upon the land on the 9th day of June, 1910, under an execution issued on a judgment rendered by the county court of Jefferson county on April 5, 1910, in favor of appellant W. R. Swearingen against appellee for the sum of $320, and advertised the land for sale on July 5, 1910. Appellee on July 4, 1910, presented to Hon. W. H. Pope, judge of the district court of Jefferson county, a petition addressed to the district court of Tyler county praying that the sale of said land be enjoined on the ground that it was appellee's homestead. The order of Judge Pope granting a temporary injunction was indorsed on said petition, and is as follows: "July 4, 1910. The above and foregoing petition for injunction having been presented to me in chambers, and it being made to appear that the Honorable W. B. Powell, judge of the district court of Tyler County., Tex., is inaccessible, after reading said petition and considering same it is ordered that the writ of injunction issue as prayed for in said petition upon the appellant filing a good and sufficient bond in the sum of $500 payable and conditioned as required by law and approved by the clerk of the district court of Tyler county, Tex., he will issue said writ." This order was filed in the office of the clerk of the district court of Tyler county on July 5, 1910, and the writ of injunction therein granted was issued and served upon appellants, and in due time appellants perfected this appeal therefrom.

Under appropriate assignments appellants complain of the order upon the following grounds: First. Because the petition for injunction is too vague, indefinite, and uncertain in its allegations to authorize the issuance of the writ, and contains no sufficient allegation of facts showing that plaintiff has any homestead rights in the premises in controversy. Second. Because the petition fails to state facts necessary to give the district judge of Jefferson county authority or jurisdiction to order the issuance of an injunction in a suit brought in the district court of Tyler county. Third. Because the suit should have been brought in the county court of Jefferson county, the court in which the judgment, the execution of which is sought to be stayed by said injunction, was rendered.

None of these objections to the order are valid. The petition is inartistically drawn, and the facts alleged upon which the homestead claim is based are meager; but we cannot say that the allegations are so vague, uncertain, and indefinite as to make it bad on general demurrer, nor that the allegations as to plaintiff's homestead rights in the property are insufficient to admit proof of facts showing that the property was plaintiff's homestead.

It is alleged in the petition that the plaintiff is the head of a family, and that the property is his homestead, and that he owns no other real estate. It is further alleged "That plaintiff is not living upon said property for the reason that he is engaged in business in Jefferson county, Tex., but is cultivating said property and has improved property with houses, fields, and barns and other homestead improvements. That plaintiff is...