Hull Kennedy v. Christian , 1926 Tex. App. LEXIS 1100 ( 1926 )

At the trial, over appellants' objection thereto on the ground that it was immaterial and calculated to prejudice the minds of the jury against them, the court permitted Mrs. Devore, then Miss Dessie Christian, to testify that the 56 acres of land "was her homestead, and that she was not willing to take $450 for her homestead." We think the objection should have been sustained and the testimony excluded. According to the pleadings of the parties, the rights of none of them depended in the least upon whether the land was appellees' homestead or not, nor upon whether they were willing to take $450 for the property or not.

It is assumed from what appears in a bill of exceptions in the record that the testimony was admitted on a theory not suggested by the pleadings, to wit, that the land was the homestead of appellees, and that the proceeds thereof were exempt to them by force of article 3787. Vernon's Sayles' Ann.Civ.St. 1914. "It was a sharply contested question," said the court in explanation of his ruling, "as to whether the defendants were authorized by plaintiffs to pay out the proceeds of the land on the debt of plaintiffs — the defendants claiming this authority from plaintiffs, and the plaintiffs denying it. This evidence was admitted on the question as to the probability of whether the authority was given or not." Whether, in view of the pleadings of the appellants, the testimony would have been admissible for the purpose indicated, had it appeared that the land was appellees' homestead within the meaning of the Constitution (section 50, art. 16) or not, need not be determined, for it did not appear from the testimony that appellees constituted a "family" within the meaning of said section of the Constitution, in that there was no testimony showing an obligation on the part of any one of them to support the others, nor a "corresponding state of dependence" for support of any of them on the others. Hutchenrider v. Smith (Tex.Civ.App.) 228 S.W. 989; Id. (Tex.Com.App.) 242 S.W. 204, and authorities there cited.

It appears from a bill of exceptions in the record that one of appellants' attorneys, in closing the argument to the jury, spoke as follows:

"Gentlemen of the jury, how preposterous it is for Hull Kennedy to come in here and try to prove that these plaintiffs told them to take the only money they had on earth between them and the poorhouse — this homestead money with which they wanted to buy them another home nearer town — and pay these debts with it. I am glad, gentlemen of the jury, that our forefathers in their wisdom saw fit in framing our Constitution to exempt the homestead of the family from forced sale and made it possible for families to live in their homes unmolested by sharks and money mongers. That, gentlemen, is the most sacred law on our statute books, and long may it live to throw at least a mantle of protection about innocent families like this one. No tribunal on earth, not even his honor (pointing to the court on the bench), with all his power, could have taken that homestead money away from these heirs (plaintiffs) to pay these debts and turned these heirs out of a home."

Appellants objected to the argument on the ground that it was with reference to an issue not presented by either the pleadings or the proof and was calculated to prejudice the minds of the jury against them, and complain here because the court overruled their objection.

For reasons suggested in what has been said above in disposing of the other contention presented by the assignments in appellants' brief, we think the argument was subject to the objection urged to it and that the court erred when he ruled as he did. Whether the land was appellees' homestead or not, and whether the proceeds of the sale of the land was "homestead money" or not, within the meaning of the exemption laws, were not issues in the case. Therefore there was no predicate for the argument, and, as we think it was calculated to wrongfully prejudice the minds of the jury against appellants, we feel bound (rule 39 for the government of district and county courts; Prather v. McClelland [Tex. Civ. App.] 26 S.W. 657) to reverse the judgment and remand the cause to the court below for a new trial.

An order to that effect will be entered accordingly.