Patterson v. English

• Decision Date: 28 October 1911
• Citation: 142 S.W. 18
• Parties: PATTERSON et ux. v. ENGLISH et al.
• Court: Texas Court of Appeals

142 S.W. 18

PATTERSON et ux. v. ENGLISH et al.

Court of Civil Appeals of Texas. Amarillo.

October 28, 1911.

Rehearing Denied December 15, 1911.¹

Appeal from Deaf Smith County Court; W. H. Russell, Judge.

Action by Jeff Patterson and wife against Mrs. E. J. English and others to enjoin an execution, in which defendants brought a cross-action for damages on account of the temporary injunction. Judgment for defendants, and plaintiffs appeal. Reversed and remanded.

Barcus & North, for appellants. Carl Gilliland, for appellees.

HALL, J.

The principal question presented by this appeal is: What is included in the term "milch cow" as used in the exemption statute?

Appellant Jeff Patterson was the head of a family, and at the time of the levy of the execution herein owned and claimed as exempt property one cow and calf, one young cow, and three Jersey heifers. Execution in favor of the appellee was levied upon the heifers, and appellant, joined by his wife, filed this suit against the appellees for damages, and obtained a temporary writ of injunction restraining the sale.

Sayles' Civil Statutes 1897, art. 2395, reserves to every family exempt from forced sale "five milch cows and their calves."

The suit was tried in the court below upon an agreed case under Sayles' Civil Statutes, art. 1293, and the facts upon this issue are set out therein as follows: "The three heifers levied upon were the following ages, to wit: One was born January 2, 1909, and brought a calf April, 1910. One was born January 11, 1909, and brought a calf July 19, 1910. And one was born March 9, 1909, and brought a calf August 1, 1910. That all three of said heifers were with calf at the time of the levy. That he (appellant) was keeping the three heifers as his milch cows. That at the time of the levy none of these heifers had ever given milk, and none of them were giving milk at the time of the levy. That he owned the mothers of the three heifers when these heifers were born, but that several months prior to the time of the levy he sold the mothers of the three heifers. That at the time of the levy all three of the heifers were with calf, and before the trial of this cause each of the three had brought a calf."

Appellee in a very ingenious brief insists that because the adjective "milch" is defined by Webster as "giving milk," and the noun "milk" means a fluid, the term "milch cow" means a cow that is actually giving milk at the time of the levy, does not include one that has heretofore or may thereafter give milk, and therefore neither of the heifers came within the letter or spirit of the law, since neither of them had ever given milk.

The exemption laws of Oklahoma provide that there shall be exempt to every family "five milch cows and their calves, under six months old" (St. 1893, § 2844), being identical with the provision of the above-quoted Texas law, except that calves are not exempt after six months of age under the Oklahoma law. In the case of Nelson v. Fightmaster, 4 Okl. 38, 44 Pac. 213, Burford, Justice, in construing the statute of Oklahoma above quoted, said: "The next question is whether or not the three heifers are exempt. The court below held that inasmuch as they had never been milked, and had never had calves, they were not exempt. It was found that the plaintiff had two other cows that were used for milch cows, and that the three heifers were with calf, and were being raised and kept to be used as milch cows. In Carruth v. Grassie, 11 Gray [Mass.] 211 , under a statute exempting one cow, a heifer 20 months old, and not with calf, and never having been milked, was held exempt; it appearing that the owner was raising it for his family cow. Under a like statute in Dow v. Smith, 7 Vt. 465 , a heifer with a calf was declared exempt. And in the later case of Freeman v. Carpenter, 10 Vt. 433 , a heifer not with calf was adjudged exempt. Freeman on Executions, § 230 says: `It is also insisted that, when the law exempts a thing, it impliedly authorizes the debtor to obtain that thing on the most advantageous terms within his reach. Therefore it is claimed that the exemption of a cow implies that the debtor may procure one by buying and raising a heifer.' And this position seems to be sustained by authority. It is true our statute exempts `milch cows'; but to hold to the letter of the law would be to subject a milch cow to levy and sale as soon as she became `dry,' so that the same cow would be exempt one season of the year, and subject to levy at another season. This is not the intention of our statute. It is intended to exempt to each head of a family five cows suitable for, intended to be used for, and kept for, milch cows. The fact that such cow is not actually giving milk is not material, nor will it defeat the right of exemption that she has never actually given milk. The claim of plaintiff that he was raising and keeping these heifers to be used as milch cows is corroborated by the fact that the heifers had been bred and were with calf. It is not usual to breed beef cattle or cows raised for the market; and we think, under the facts found, these heifers come as much within the spirit and intention of the law as if they had been actually giving milk at the time of the levy. It follows therefore that the district court erred in holding that they were not exempt."

We approve the decision quoted and think to hold otherwise would have the effect of depriving the very class for whose protection the exemption laws were enacted of many benefits to be derived therefrom. One may not be financially able to purchase a milch cow, but could buy a heifer and raise and breed her for a nominal sum, and we think he should be protected if he is sincere in his undertaking.

There is a uniform tendency of the courts to hold that where a statute exempts "horses," "cows," "yoke of oxen," and the like, young animals of the species and description named that will eventually become such are within the meaning of that term as used in the statute. Johnson v. Babcock, 8 Allen (Mass.) 583; Stirman v. Smith (Ky.) 10 S. W. 131, 132; Berg v. Baldwin, 31 Minn. 541, 18 N. W. 821, 822; Mundell v. Hammond, 40 Vt. 641; Mallory v. Berry, 16 Kan. 293.

The policy of the courts of this state is, in all cases, to give a liberal construction to our exemption laws, and in doing so they have held that a dray is a "wagon" (Cone v. Lewis, 64 Tex. 331, 53 Am. Rep. 767); that an automobile is a "carriage" (Parker v. Sweet, 127 S. W. 881); that a diamond ring is "wearing apparel" (First National Bank v. Robinson, 124 S. W. 177); that a piano is "household and kitchen furniture," and that the term extends to all furniture both useful and ornamental (Alsup v. Jordan, 69 Tex. 300, 6 S. W. 831, 5 Am. St. Rep. 53); that the word "horse" includes a bridle and saddle, as well as the shoes on its feet and the rope and martingales around its neck (Cobbs v. Coleman, 14 Tex. 594; Dearborn v. Phillips, 21 Tex. 449), because these things are necessary for its beneficial enjoyment. And this spirit of liberal construction has been indulged until they have held that an unbroken colt is a "horse" within the meaning and purport of the exemption laws (Hall v. Miller, 21 Tex. Civ. App. 336, 51 S. W. 36); and even that a mule, removed as he is one degree by consanguinity, is nevertheless a "horse." Furthermore, in their effort to extend the humane and beneficial character of our exemption statute, they have become so blind to every other consideration that they have looked upon the mule's father and pronounced him — voice, ears, and all — a horse. Robinson v. Robertson, 2 Willson, Civ. Cas. Ct. App. § 254.

We think a heifer with calf in the natural order of events is nearer a milch cow than a mule is to a horse, and that the spirit of a law which can convert a jackass into a horse should be made to hover a parturient heifer— yes, all three of them — under its protecting wings until time can bring them safely within the letter of the law.

Judgment was rendered against the appellant and the sureties on his injunction bond for the full amount of the judgment upon which execution was issued. The agreed statement contained no evidence in any way sustaining appellees' cross-action for damages, and the statute does not authorize judgment on the bond upon dissolving the injunction for a sum above ten per cent. (and this as damages only) on the amount released by the dissolution of the injunction, exclusive of costs (Sayles' Civil Statutes, art. 3010), and in no event could judgment have been properly rendered against the sureties for the principal sum enjoined. T. & N. O. Ry. v. White, 57 Tex. 129; Avery v. Stewart, 60 Tex. 154.

For the errors indicated, the case is reversed and remanded.

1. Filed in the Court of Civil Appeals at Ft. Worth January 23, 1911, and transferred to this court July 1, 1911, by order of the Supreme Court.

GRAHAM, C. J. (dissenting).

While I concur in the conclusion reached by the majority of the court as to a reversal of the cause, because the record does not support that portion of the judgment appealed from wherein liability was fixed against the sureties on the injunction bond for the claim sued for, together with 10 per cent. damages thereon, I cannot agree to the conclusion reached by the majority that the three heifers were exempt from execution and forced sale; and, as this question must be properly decided before the case can be disposed of according to law, I think it proper to dissent from said conclusion, and I give my reasons therefor below.

Succinctly stated, the question is: Can three heifers, one a few days more than three years old and the other two about two months less than three years old, neither of which had ever given milk, nor brought a calf, and neither of which were giving milk at the time they were levied upon under legal process, but all of which at the time of the levy would soon become milch cows, and had been raised by the owner...