Weitzman v. Lee , 262 S.W. 859 ( 1924 )

On Motion for Rehearing. In the original opinion some doubt is expressed as to the sufficiency of the appellants' plea, setting up the business homestead exemption. Appellee has called our attention specifically to the facts as alleged, which, as against a general demurrer, we think are sufficient; but if it be admitted that appellants' allegations are insufficient, it does not present fundamental error, requiring us to reverse the judgment in order that he may perfect his pleading. No one was surprised or misled thereby, and, as said by the Supreme Court, in Blum v. Whitworth, 66 Tex. 350,1 S.W. 108:

"No mere omission in pleading, which did not mislead the adverse party, will be regarded on appeal, but the case will be decided on that theory upon which both parties have proceeded in the appellate court."

Where the trial court and the parties have placed a certain construction upon a pleading in any degree susceptible of such construction and the case has been tried upon a theory so understood and acquiesced in, it is too late for the pleader to raise the question of the sufficiency of his own allegations by motion for rehearing in this court; the general rule being that a pleader cannot attack his own pleadings on appeal. Moreover, by his conduct throughout the trial, appellant invited the error, if any, in trying the issue of business homestead, and is precluded from insisting upon it here. The following cases have settled these principles: Panhandle Grain Elevator Co. v. Dowlin (Tex.Civ.App.) 247 S.W. 873; Kistler v. Latham (Tex.Com.App.) 255 S.W. 983; Lemm v. Miller (Tex.Civ.App.) 245 S.W. 90; Southern Pacific Railway Company v. Kennedy, 9 Tex. Civ. App. 232, 29 S.W. 394; Kuhn v. Shaw (Tex.Civ.App.) 223 S.W. 343; Delaware Underwriters v. Brock, 109 Tex. 425,211 S.W. 779; Elcan v. Childress, 40 Tex. Civ. App. 193, 89 S.W. 84; Gutheridge v. Gutheridge (Tex.Civ.App.) 161 S.W. 892; Boone v. Clark (Tex.Civ.App.) 214 S.W. 607; Gladys City Oil Co. v. Right of Way Oil Co. (Tex.Civ.App.) 137 S.W. 171; Id., 106 Tex. 94, 157 S.W. 737, 51 L.R.A. (N. S.) 268; T. N. O. Ry. Co. v. Geiger, 55 Tex. Civ. App. 1,118 S.W. 179; Lumsden v. Jones (Tex.Civ.App.) 205 S.W. 375; Downs v. Stevenson, 56 Tex. Civ. App. 211, 119 S.W. 315.

The appellant seeks to enjoin the sale of property which prima facie is subject to execution. He had discontinued business and was no longer using it as his bakery (Willis Bro. v. Pounds, 6 Tex. Civ. App. 512,25 S.W. 715; Taylor v. Ferguson, 87 Tex. 1, 26 S.W. 46; Tackaberry v. City National Bank, 85 Tex. 488, 22 S.W. 151, 299); he was totally insolvent and without credit (Malone v. Kornrumpf, 84 Tex. 454, 19 S.W. 607); the terms of his lease precluded the possibility of his assuming business within the near future and prima facie negatived a bona fide intention of doing so at any definite time in the future (Hill v. Hill, 85 Tex. 103,19 S.W. 1016; Alexander v. Lovitt, 95 Tex. 661, 69 S.W. 68; Cooper Grocery Co. v. Peter, 35 Tex. Civ. App. 49, 80 S.W. 108); with his family he had gone to Oklahoma (Reece v. Renfro, 68 Tex. 192, 4 S.W. 545; McElroy v. McGoffin, 68 Tex. 208, 4 S.W. 547; Harrington v. Mayo,61 Tex. Civ. App. 610, 130 S.W. 650); and his tenant was in possession under a ten-year lease, which also conferred upon the tenant the exclusive option of purchasing the property at any time for an agreed price. In seeking to prevent the sale, he is the aggressor and holds the laboring oar, at least to the extent of establishing the fact that the property is his business homestead which he had not and could not repossess because of the lease after the writ was levied. Because of the lease he could not occupy the bakery as a business homestead and was not doing so. By his application for injunction he assumed the burden of showing that it was exempt from forced sale. By his pleadings, as well as by his evidence, he must bring the property within the pale of the constitutional inhibition. He is seeking affirmative relief, and the court, in granting it, is limited by the facts which he sets out. In other words, he must claim it as a business homestead before the court can give it to him. No duty to claim it in his behalf rested upon the court, and surely the defendant could not be expected to do so. If he could have asserted a homestead claim and did not, the court will not give him one nolens volens. A failure to assert his claim in his pleadings is a waiver of it. Moore v. Moore, 89 Tex. 29. 33 S.W. 217: Harris v. Matthews, 36 Tex. Civ. App. 424, 81 S.W. 1198: Fitzhugh v. Connor, 32 Tex. Civ. App. 277, 74 S.W. 83; Sweet v. Lyon,39 Tex. Civ. App. 450, 88 S.W. 384; Nichols v. Dibrell, 61 Tex. 539; Ellis v. Harrison. 24 Tex. Civ. App. 13, 56 S.W. 592,57 S.W. 984.

Abandonment of the homestead could be shown by appellee under a general denial. Burcham v. Gann, 1 Posey, Unrep.Cas. 333. The question of abandonment was one of fact, and the evidence is sufficient to show abandonment of the homestead unless appellant left the state on account of his wife's health. Although he testified that he went to Tulsa on account of his wife's health, as stated in the original opinion, the court was not hound to believe that part of his testimony. The evidence shows that she was in Wichita Falls at the time of the trial, and yet she was not produced as a witness; neither did appellant bring any of his multitude of doctors to corroborate him. The appellee was not required to put either Mrs. Weitzman or any of the physicians upon the stand, and no presumption arises against him for his failure to do so. Weitzman had been discredited by proof that he had testified falsely in a vain effort to be discharged in bankruptcy.

While we must commend appellant's attorneys for their energy and ability in marshaling such a formidable array of decisions in support of the contentions in their motion, their law does not fit the facts.

In his original and two supplemental motions, appellant seems to ignore the difference between his business and residence homesteads. They were separate buildings, and the appellant had segregated one from the other by the plank walk and cement driveway, as well as by a designated front yard. As shown by the maps, the parties recognized the fact of such separation throughout the trial, and the court respected it in rendering judgment.

In our opinion the judgment does not create an easement, but simply recognizes and preserves one already created by the appellant himself. The cement driveway from the alley to the loading shed in the rear of the bakery was neither a part of the residence homestead nor necessary to its use and enjoyment. Appellant had, by user, dedicated it as auxiliary to the bakery. The judgment preserves the front yard and sets it apart to the use of the occupant of the dwelling and enjoins its sale, together with the plank walk around two sides of the bakery to the front street. There being an obvious and permanent servitude imposed by appellant upon the estate in the establishment of such easements, the court properly respected them in his judgment. Miles v. Bodenheim (Tex.Civ.App.)193 S.W. 693; Leathers v. Craig (Tex.Civ.App.) 228 S.W. 995; Howell v. Estes, 71 Tex. 690, 12 S.W. 62.

The rehearing is denied.