Stewart v. Rockdale State Bank

• Decision Date: 06 February 1935
• Docket Number: No. 6379.,6379.
• Parties: STEWART v. ROCKDALE STATE BANK.
• Court: Texas Supreme Court

Page 116

79 S.W.2d 116

STEWART v. ROCKDALE STATE BANK.

No. 6379.

Supreme Court of Texas.

February 6, 1935.

Error to Court of Civil Appeals of Third Supreme Judicial District.

Suit by the Rockdale State Bank against Bruce Stewart. Judgment for plaintiff was affirmed by the Court of Civil Appeals [52 S. W.(2d) 915], and defendant brings error.

Affirmed.

W. A. Morrison, of Cameron, for plaintiff in error.

E. A. Camp, of Rockdale, for defendant in error.

PIERSON, Justice.

The Rockdale State Bank sued Bruce Stewart in the county court of Milam county upon a note for $380, and caused an attachment to be levied upon three parcels of real estate. Stewart filed a motion to quash and suppress the attachment because one of the parcels of land belonged to his wife, and the other two constituted his homestead. This plea was overruled by the court, upon the ground that the county court did not have jurisdiction to try the issues raised in the motion. Stewart offered to produce evidence in support of the allegations in his motion. The motion and tender of evidence were denied "because it was the opinion of the court that this court was without power or jurisdiction to hear or determine the ownership of said lands or the question of the homestead rights of the defendant therein."

The judgment, which was in favor of the bank upon the note, recites: "It is further ordered and decreed by the court that the lien created by the issuance and levy of the writ of attachment on said real estate as hereinabove recited, be and the same is here now recognized and preserved, and all of the rights, liens and equities to which plaintiff is entitled by virtue of said writ and levy are here now preserved to him as fully as this court has the power to grant the same, and such rights are decreed to plaintiff."

Stewart has appealed, assigning as error the ruling of the court in denying the motion and in refusing to hear evidence thereon.

In his application for writ of error in his statement of the case, plaintiff in error says: "The plaintiff in error appeared in such court and preliminary to trial filed a motion seeking to quash or otherwise vacate and suppress the writ of attachment for the reason that the return of the sheriff on the writ of attachment showed that it had been levied upon two tracts of land which was the homestead of the plaintiff in error, and upon the third tract, which was the separate property of his wife, though the title to the same stood in the name of plaintiff in error, but that the entire consideration for the land had been paid for out of her separate funds. This motion was verified by the plaintiff in error."

The plaintiff in error says that the Supreme Court has jurisdiction of this cause because:

First. The Court of Civil Appeals erred in its construction, meaning, and application of article 300 of the Revised Statutes of Texas, and in holding that the county court had no power or jurisdiction to abate the writ of attachment on the plaintiff in error's homestead, and in refusing to hear any evidence in reference thereto.

Second. Because the Court of Civil Appeals erred in holding and decreeing that the county court had no power or authority to inquire into its jurisdiction in reference to establishing and foreclosing an attachment lien upon a homestead.

He assigned error on the refusal of the court to permit him to prove that two tracts of the land were his homestead, and that the other belonged to his wife. He assigned as error, also, that the court preserved and in effect foreclosed the attachment lien on his homestead and on his wife's separate property.

Plaintiff in error concedes that the county court has jurisdiction to foreclose an attachment lien on land, but insists that the county court in such a suit has jurisdiction also to determine his claim of homestead and the issue that one tract of the land belonged to another, to wit, his wife. He argues that the property was not subject to the attachment, and that his motion to quash was good for that reason.

That a county court has jurisdiction to foreclose an attachment lien on land is settled in this state. Baker v. Pitluk & Meyer, 109 Tex. 237, 205 S. W. 982, and cases cited therein.

The primary contention here, then, is not that the county court does not have jurisdiction to foreclose an attachment lien on real estate, but that it does have jurisdiction to pass upon a claim of homestead in such land, and also upon the title to such land of a person not a party to the suit. He insists that the county court has power to hear evidence and to adjudicate those issues. This on the theory that such issues may be maintained under his motion to quash, vacate, or suppress the writ of attachment by virtue of article 300 of the statutes. Likewise, his tendered issue that one piece of the land belongs to another, to wit, his wife.

Such issues cannot be litigated and adjudged in a county court. Under the Constitution and laws only the district court has jurisdiction over them. Const. art. 5, §§ 8 and 16.

Article 5, § 8, of the Constitution provides: "The District Court shall have original jurisdiction * * * of all suits for trial of title to land and for the enforcement of liens thereon; of all suits for the trial of the right of property levied upon by virtue of any writ of execution, sequestration or attachment when the property levied on shall be equal to or exceed in value five hundred dollars."

Article 5, § 16, of the Constitution provides: "The County Court shall have * * * exclusive jurisdiction in all civil cases when the matter in controversy shall exceed in value $200, and not exceed $500, exclusive of interest, and concurrent jurisdiction with the District Court when the matter in controversy shall exceed $500, and not exceed $1,000, exclusive of interest, but shall not have jurisdiction of suits for the recovery of land."

The provisions of the Constitution relating to the homestead of a family are found in sections 50, 51, and 52 of article 16, which are as follows:

"Sec. 50. The homestead of a family shall be, and is hereby protected from forced sale, for the payment of all debts except for the purchase money thereof, or a part of such purchase money, the taxes due thereon, or for work and material used in constructing improvements thereon, and in this last case only when the work and material are contracted for in writing, with the consent of the wife given in the same manner as is required in making a sale and conveyance of the homestead; nor shall the owner, if a married man, sell the homestead without the consent of the wife, given in such manner as may be prescribed by law. No mortgage, trust deed, or other lien on the homestead shall ever be valid, except for the purchase money therefor, or improvements made thereon, as hereinbefore provided, whether such mortgage, or trust deed, or other lien, shall have been created by the husband alone, or together with his wife; and all pretended sales of the homestead involving any condition of defeasance shall be void.

"Sec. 51. The homestead, not in a town or city, shall consist of not more than two hundred acres of land, which may be in one or more parcels, with the improvements thereon; the homestead in a city, town or village, shall consist of lot, or lots, not to exceed in value five thousand dollars, at the time of their designation as the homestead, without reference to the value of any improvements thereon; provided, that the same shall be used for the purposes of a home, or as a place to exercise the calling or business of the head of a family; provided also, that any temporary renting of the homestead shall not change the character of the same, when no other homestead has been acquired.

"Sec. 52. On the death of the husband or wife, or both, the homestead shall descend and vest in like manner as other real property of the deceased, and shall be governed by the same laws of descent and distribution, but it shall not be partitioned among the heirs of the deceased during the lifetime of the surviving husband or wife, or so long as the survivor may elect to use or occupy the same as a homestead, or so long as the guardian of the minor children of the deceased may be permitted, under the order of the proper court having the jurisdiction, to use and occupy the same."

Articles 300 and 301 of the statutes are relied on by plaintiff in error to support his position.

Article 300, R. S., reads: "The execution of the writ of attachment upon any property of the defendant subject thereto, unless the writ should be quashed or otherwise vacated, shall create a lien from the date of such levy on the real estate levied on and on such personal property as remains in the hands of the attaching officer, and on the proceeds of such personal property as may have been sold."

Article 301, R. S., reads: "Should the plaintiff recover in the suit, such attachment lien shall be foreclosed as in case of other liens, and the court shall direct the proceeds of the personal property sold to be applied to the satisfaction of the judgment, and the sale of personal property remaining in the hands of the officer and of the real estate levied on, to satisfy the judgment. When an attachment issued from a county or justice court has been levied upon land, no order or decree foreclosing the lien thereby acquired shall be necessary, but the judgment shall briefly recite the issuance and levy of such attachment, and such recital shall be sufficient to preserve such lien. The land so attached may be sold under execution after judgment, and the sale thereof shall vest in the purchaser all the estate of the defendant in attachment in such land,...