Ritz v. First Nat. Bank of Pecos

• Decision Date: 27 October 1921
• Docket Number: (No. 1241.)
• Citation: 234 S.W. 425
• Parties: RITZ et ux. v. FIRST NAT. BANK OF PECOS.
• Court: Texas Court of Appeals

234 S.W. 425

RITZ et ux. v. FIRST NAT. BANK OF PECOS.

(No. 1241.)

Court of Civil Appeals of Texas. El Paso.

October 27, 1921.

Appeal from District Court, Reeves County; Chas. Gibbs, Judge.

Suit by the First National Bank of Pecos against Max Ritz, wherein a writ of attachment was levied upon land, which defendant's wife, in a cross-action joined by her husband, claimed to be homestead. Judgment for plaintiff, and defendants appeal. Reversed and remanded.

Clem Calhoun, Jno. B. Howard, and W. A. Hudson, all of Pecos, for appellants.

Ben Palmer, of Pecos, for appellee.

HIGGINS, J.

Appellee on September 3, 1921, brought this suit against Max Ritz to recover upon a promissory note in its favor executed by him.

Upon the filing of the petition the plaintiff applied for a writ of attachment upon the ground that Ritz was a nonresident. The writ was issued and levied upon certain premises in the town of Pecos.

Ritz answered, admitting that the bank was entitled to judgment against him upon the note.

By cross-action Mrs. Ritz, joined by her husband, set up that the property levied upon under the writ was their homestead and had never been abandoned by them, that the writ had been wrongfully and maliciously issued, and sought to recover damages therefor. By supplemental petition the bank set up that Ritz and wife had moved to California and permanently abandoned as a home the premises levied upon.

Upon trial a verdict was returned in favor of the bank, and judgment rendered in its favor upon the note with foreclosure of the attachment lien and that Ritz and wife take nothing by cross-action.

From this judgment the latter appeal, and first assign as error that the evidence is insufficient to sustain the verdict and judgment against them upon the homestead issue.

The evidence discloses that Ritz and wife had lived upon the premises with their two children. Ritz was involved financially and became ill. About June, 1920, he left Pecos and went first to Bisbee, Ariz., where he remained for some time with a sister. He then went to California, where he still remained at the date of trial on November 29, 1920. On August 25, 1920, Mrs. Ritz left Pecos and joined her husband in California. While there they have lived with her mother. Prior and at the time of her departure for California negotiations were pending for the sale of their home to a Mr. Merriman, but after her departure the trade fell through. Mrs. Ritz stayed in the home until she left for California. From what has been said it will be observed that the premises in Pecos had been impressed with the homestead character; that, while the Ritzes had removed from the same, a new homestead had not been acquired. The question is thus presented as to the intention of the Ritzes in leaving the same. If they left it with the intention of never returning thereto, or if such intention was formed subsequent to their removal, then the property lost its homestead character and became subject to execution. But, if such was not the intention, the contrary rule applies. Max Ritz did not testify, but Mrs. Ritz did. Her testimony in full is as follows:

"My name is Maude Ritz. I live at Pecos, Reeves county, Tex., and have lived here since I was married, 8½ years ago last June. I am Max Ritz's wife. Max is with my mother in Los Angeles, Cal., and is not here because he is sick and has gone to California trying to get well; he has been down with chills and fever; his health is broken down generally. I have forgotten the exact day he left here, but it was in June of this year. I left here in August some time. Yes; Max and I have a home here in Pecos; we call this home. Our home is located on lots 7, 8, and 9, of block 18, West Park addition to Pecos, Tex. We bought it from Mr. Wylie, who lives in Sweetwater, and we still owe $2,000 on it yet. No sir; we have never moved. My household goods are stored here now, but I had to sell some of my furniture to get money. I had to have some money to go to my husband in California and to take care of him with after I got there, and sold part of our furniture. He was sick at the time. Yes; we have two children; one is 5½ years and one 2½ years old. Yes; Max and I are still living together as husband and wife. We lived in our home here from the time we bought it, which was some time during the oil boom, I don't remember just what month, until August, when I left. We had no other home and never had one before that, nor since; that is all the home we ever had and all we have now. I went to California to take care of Max, my husband. I thought he needed me. My mother is there and has been there about a year, and I think she is permanently located there. I had made a trade to sell my home when I went to California. I was intending to put the money I received in on another home. I was making the trade with Mr. Merriman. He was to pay me $1,500. No, sir; I never received the $1,500. I thought the trade was already made, but I never received the $1,500. The First National Bank of Pecos ran an attachment on the home, and Mr. Merriman would not take it. He told me he wanted it. The consideration was this: There was $2,000 due on and against the place, and he was to take that up and pay me $1,500 above that. No, sir: I did not intend to stay in California. I don't know that I had any other place picked out, other than Pecos. We had a nice little home here, and we were in California only temporarily for my husband's health. Yes; you kept me informed of everything, and when the trade was up you advised me that there was something wrong about the title, and that it it had to be fixed to the satisfaction of Mr. Merriman, and I thought the trade was made, until you notified me by letter that the First National Bank was running an attachment on our home. Yes; I think I remember the day I left Pecos; I think it was July 25, 1920. I sold some of my furniture to get money to go there on. I think it took around $150 that was necessary to come here to attend court."

Cross-examination of Mrs. Ritz by plaintiff:

"I do not remember the exact day Max left, but it was two or three months before I did. No; he did not go immediately to California when he left; he went to his sister's in Bisbee, Ariz. He did not stop in El Paso that I know of; in fact, I don't think he did. He stayed in Bisbee from the time he left here until about a week before I left. I don't think it was three months he stayed there; I know it wasn't. He has done nothing at all since he left here; he has not been able to do anything. We are living with my mother. She doesn't exactly support us. We sold some of our furniture and have a little money, but it won't last long. I have cooking utensils, bedclothes, window shades, and dishes stored here in Pecos. Yes, sir; I contracted to sell Le Grand Merriman the place before I left. Yes, sir; Max owed him $200, and he was to take that $200 out of the $1,500 that would be due us on the home; that would leave $1,300. Yes, sir; Max had some trouble with his father before he left. I don't exactly know how long after that before he left. I don't think he went down town after that. No; that was not the reason he left here; he left because of his health. He went to Toyah in a car, and from there on the train. He left between breakfast and dinner. Negro Jim, the porter at the barber shop, went with him and brought the car back home. I don't know why he didn't get on the train here at Pecos; he didn't say. My mother and two boys taking care of her and a sister and her husband live with my mother in Los Angeles. I was intending going there on a visit some two or three weeks before I went, some time the first of July. Max stopped in Bisbee to see his sister. Yes, sir; Bisbee is near the Mexican border. I don't know though just how near it is. I don't know whether he was in Mexico a part of the time or not. I left a deed to Le Grand Merriman with Mr. Howard when I left here. Max had signed the deed before I left. He signed it in Bisbee, Ariz., and sent it here, and I signed it and took it over to Mr. Howard. I don't remember ever making a statement in Mr. Drane's presence that I was almost crazy to get away from here. I don't remember making that statement at all. I may have expressed a desire to be with my husband. No, sir; I did not make that statement to Le Grand Merriman. He was up there some to see about buying our home, but I didn't make that statement. If I did make the statement that I was anxious to get away and go to Los Angeles, it was to get away to see my husband. I don't remember that I said that even. Yes; I have a letter in my possession written by Mr. Beauchamp of the First National Bank to Max (producing the letter). Yes, sir; Max received this letter through the mail. I don't remember when he received it. The date shows when it was written, and it takes about three days to go there, and I don't think it was delayed, but I haven't the envelope."

Redirect examination of Mrs. Ritz by defendant:

"I intended to go to see how Max was, and that is what I did, and I had no intention whatever of abandoning our homestead. Yes, sir; I was anxious to get away to see about my husband, and if I made any statement at all it was to the...