Brantley v. Pruitt

LAND, J. The defendants brought separate suits against plaintiff for damages suffered by them in an automobile accident and obtained judgments against him. Pruett v. Brantley, 13 La. App. 208, 127 So. 2; Lem M. Hays v. Brantley, 13 La. App. 219, 127 So. 5. The plaintiff in each of these suits caused execution to issue, and seized and advertised for sale 145 acres of land in Sec. 2 and Sec. 3, T. 17, N. R. 6 W., in the parish of Bienville, belonging to plaintiff. The sale of the property was enjoined by plaintiff, on the ground that he was a farmer, and the head of a family with a wife dependent upon him for support; that he was the bona fide owner of the land, and occupied the same as a home; and that the property was exempt as a homestead from seizure and sale under the Constitution and laws of the state. Defendant in each case moved to dissolve the preliminary writ of injunction issued on the ground, Sjmong others, that plaintiff does not occupy the land as a homestead, and is therefore not entitled to the exemption claimed. Each defendant prayed for dissolution of the writ and for damages for attorneys’ fees, and statutory damages. The motions to dissolve were referred to the merits. The cases were consolidated for the purpose of trial, and counsel for defendants moved the court that the motions be tried and considered separately from the merits. The cases were tried, resulting in judgments in favor of defendants, dissolving the writ of injunction in each case, and awarding statutory damages of 20 per cent., less the 5 per cent, interest included in the original judgment, in solido against the plaintiff and the surety on his injunction bond. From these judgments the plaintiff has appealed, but the surety has not appealed. *883 1. Plaintiff sold the property on -which he had lived for a great many years to his son-in-law, B. S. Hiser, and plaintiff and his wife reside with him. Plaintiff does not claim to have ever resided on the property seized herein and advertised for sale. He admits in his testimony that he does not live on it, and that he has never at any time lived on it. As early as the 40th La. Ann., Denis v. Gayle (40 La. Ann. 286, 4 So. 3), this court laid down four indispensable conditions for a debtor to combine in himself in order to claim exemption of property as a homestead, viz.: (a) He must be the -bona fide owner of the land; (b) He must occupy the premises as a residence ; (c) He must have a family or person or persons dependent on him for support; (d) And the property must not exceed in value $2,000. It is well settled that the absence of any one of these conditions in the debtor will defeat his claim for homestead exemption. To entitle him to the homestead, all the conditions must coexist at the very time that the claim is propounded. Denis v. Gayle, 40 La. Ann. 290, 4 So. 3; Hayden v. Sheriff, 43 La. Ann. 385, 8 So. 919; Martin v. Walker, 43 La. Ann. 1021, 10 So. 365; Clausen v. Sanders, 109 La. 996, 34 So. 53. It follows, necessarily, that as plaintiff does not reside upon the land claimed as a homestead, he is not entitled to the exemption herein set up by him. 2. The injunction dissolved in this case is not one restraining the sale of specific property as not belonging to the judgment debtor but to plaintiff, but is an injunction' against the execution of judgments for money, under Code of Practice, article 304. In such a case it is not necessary to relegate defendant to an action on plaintiff’s injunction bond for damages, since it is specially provided in that article that: “On the trial of the injunction, the surety on the bond shall be considered as a party plaintiff in the suit; and in case the injunction be dissolved, the court, in the same judgment, shall condemn the plaintiff and surety * * * jointly and severally, to pay to the defendant interest at the rate of eight per cent, per annum on the amount of the judgment, and not more than twenty per cent, as damages, unless damages to a greater amount be proved; and the sureties in such cases shall not be allowed to avail themselves of the plea of discussion.” It is well settled that, on the dissolution of an injunction directed against the execution- of a money judgment, the judge may allow damages to the amount of 20 per cent, on the judgment enjoined without proof. Timken v. Wisner Estates, 153 La. 268, 95 So. 711, and numerous cases there cited. No attorneys’ fees have been allowed as special damages in this ease, and defendants have neither appealed nor answered the appeal and prayed for amendment of the judgment in that respect. The rule, therefore, that when an injunction is dissolved on the merits and not on a motion to dissolve, attorneys’ fees will not be allowed, has no application to this ease. Kavanaugh v. Frost-Johnson Lumber Co., 149 La. 972, 90 So. 275; Three Rivers Oil Co. v. Laurence, 153 La. 224, 95 So. 652. *885 In our opinion, the judgments appealed from ¿re correct. Judgments affirmed.