Stichter v. Southwest Nat. Bank
| Decision Date | 19 January 1924 |
| Docket Number | (No. 9174.) |
| Citation | 258 S.W. 223 |
| Parties | STICHTER v. SOUTHWEST NAT. BANK. |
| Court | Texas Court of Appeals |
Appeal from District Court, Dallas County; Louis Wilson, Judge.
Action by the Southwest National Bank against R. B. Stichter. From an order dissolving a temporary injunction, defendant appeals. Reversed and remanded.
Ethridge, McCormick & Bromborg, of Dallas, for appellant.
Leake & Henry, of Dallas, for appellee.
This appeal is from an order of the trial court, dissolving a temporary writ of injunction that had theretofore been issued on the application of appellant, restraining the sheriff of Dallas county from levying a writ of attachment on a Cadillac touring car and a small Ford truck. The petition for injunction was presented to the judge of the district court of Dallas county on September 6, 1923, and the order entered granting the said temporary injunction directed the defendant named in the petition to appear in court on the 25th day of September, 1923, and show cause why such writ should not be continued in force.
Appellee, as plaintiff, had theretofore filed suit against appellant as defendant, alleging an indebtedness due it from appellee in the sum of $4,000. Appellant had answered said suit, claiming that such indebtedness had theretofore been paid, and that appellant was indebted to him in a named sum of money, and, by cross-action, sought to recover such alleged indebtedness. While this suit was pending, appellee, as plaintiff below, caused the said writ of attachment to issue, and appellant presented in said suit its said petition for the injunction. This suit for indebtedness has not yet been tried.
On the day named, appellee made its appearance and filed its motion to dissolve. Upon a hearing of the issues made by the petition for injunction and the motion to dissolve, the court entered its order dissolving said injunction, but suspended said order during the pendency of this appeal, on condition of appellant's filing a bond in the sum of $2,000. This bond was duly filed by appellant in the court below.
The judgment dissolving the injunction was entered upon the following facts:
Appellant is a married man and the head of a family consisting of himself, his wife, and a son. The family resides on a farm about 7 miles north of Dallas. Appellant owns the two automobiles described in the petition for injunction, and does not own any mules, horses, wagon, buggy, or other vehicle that could be used in connection with his farm, or for the purposes for which a buggy or carriage is commonly used. The Cadillac touring car has been owned for some time, and has been used as a family vehicle — that is, for the purpose and convenience of the family in riding to and from various places to which the different members of the family might desire to go. The small Ford truck is used solely in connection with the farm and for the general purposes for which a farm wagon would be used. Appellant, both in his petition for injunction and in his oral evidence before the court, claimed both of said vehicles as exempt to him under the exemption statutes of this state.
Mrs. R. B. Stichter, the wife of appellant, owns in her own separate right, a Cadillac sedan, and has owned and been in exclusive possession of said car since the 25th day of December, 1920. This car is not exclusively used by Mrs. Stichter, but is sometimes used by both the husband and the son, but, when so used, permission from her to do so is invariably secured. She alone has the complete direction as to the use of this car. It is registered in her name, and the upkeep and taxes on the car are paid by her.
Mrs. Stichter came into the possession and ownership of the car as a gift to her from her husband and to be owned in her separate right. This gift was evidenced by a telegram sent by appellant while absent in an Eastern city. At the time appellant made this gift of the car to his wife, he was solvent, and, while at that time he owed appellee a debt, this debt was afterwards discharged, and the debt forming the subject-matter of the suit in the said district court was not contracted until more than a year after the purchase and delivery of this car. However, the evidence discloses that during all the time intervening between the gift of the car and the time of this hearing, appellant was solvent and could legally make the gift to his wife.
Appellant contends that, under the facts as enumerated above, the touring car and the Ford truck are exempt from the levy of the writ of attachment under the exemption laws of this state. Appellee contends that, as the exemption laws only allow one car exempt to the family, and as the levy of this writ on the two cars in question would leave one car for the use of the family, to wit, the car owned by Mrs. Stichter, that to allow appellant's contention would be to enlarge the exemption statute beyond what was intended by the Legislature. It further claims that the Ford truck cannot be held as exempt in lieu of a wagon specifically named in the exemption statute, because it is a vehicle essentially different from a wagon.
We cannot agree with appellee in either of these contentions. Section 49 of article 16 of the Texas Constitution reads as follows:
"The Legislature shall have power, and it shall be its duty, to protect by law from forced sale a certain portion of the personal property of all heads of families, and also of unmarried adults, male and female."
Article 3785 was enacted by the Legislature to comply with this mandate of the Constitution, and so much of it as is necessary for this consideration reads:
While the statute makes the exemption to the family and does not mention heads of families, still, when the statute is read in connection with the...
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...were enacted and are to be construed so as not to change the clear mandate of the Constitution. Stichter v. Southwest National Bank, 258 S.W. 223 (Tex.Civ.App. — Dallas 1924, writ dism'd). A fair construction of the grants of exemptions must include not only the subject itself, but everythi......
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