Davis v. Schultz

KLINGEMAN, Justice. This is a suit by appellant, Raymond W. Davis, against appellees, Raymond Schultz and wife, for damages for alleged conversion arising out of the levy of execution, removal and sale of certain furniture, fixtures and other property used by appellant in the operation of a restaurant business. Motions for summary judgment were filed by both appellant and appellees. Appellees’ motion for summary judgment was granted by the trial court and judgment entered that appellant take nothing. The property involved was as follows: 20 tables, 72 chairs; stool behind cash register; all square counters; cash register-solid brass; carbonatar; ice machine; refrigerated sandwich unit behind counter with compressor; stove with two burners, grill and oven; 2 glass upright refrigerators double door; triple stainless steel sink unit; hot dog machine; dishwasher with sink; shelves; glassware; silverware. Appellant relies on the provisions of Article 3835, Vernon’s Annotated Civil Statutes, which reads in part as follows: “Exempt to others than family “The following property shall be reserved to persons who are not constitutents [constituents] of a family, exempt from attachment, execution and every other species of forced sale: * * * “3. All tools, apparatus and books belonging to any trade or profession.” Appellant asserts two points of error: (1) that the court erred in holding that the property levied on was not exempt property under the statute; and (2) that the court erred in granting appellees’ summary judgment as there was a question of fact herein. [805] We have been cited no cases, nor have we found any, where cafe equipment of the type here involved has been held to be exempt. A case directly in point is Simmang v. Pennsylvania Fire Insurance Company, 102 Tex. 39, 112 S.W. 1044 (1908), where the owner of a cafe contended in a garnishment proceeding that certain equipment of the cafe, including a lunch counter, back counter, shelving, safe, stools, stove, fans, cash register, two ice boxes, crockery, table ware, linens, knives, forks, kitchen utensils, together with similar articles constituting the tools and apparatus of his trade or profession as a keeper of a restaurant, was exempt under the provisions of Article 2395, Subdivision 5, Revised Civil Statutes of Texas (1895) [which is now Article 3832, Revised Civil Statutes of Texas (1925)1], which provided in part as follows: “The following property shall be reserved to every family, exempt from attachment or execution and every other species of forced sale for the payment of debts, except as hereinafter provided: * * * 5. All tools, apparatus and books belonging to any trade or profession.” The Supreme Court, after stating the question: “Granting that the keeping of a restaurant is a trade within the meaning of the law, the question arises: Were the things insured ‘apparatus,’ as the term is used in the statute?”; held, “We conclude that the property which was destroyed by fire, and for which the insurance money was due from Pennsylvania Fire Insurance Company, was not exempt from forced sale * * *.” (102 Tex. 39, 112 S.W. at 1045) In Hooker v. Roberts, 330 S.W.2d 493 (Tex.Civ.App.—Eastland 1959, no writ), the Court said: “However, if we could consider the question of exemption of the cafe equipment as apparatus of a trade, we would be required to hold that it is not exempt in compliance with the decision of our Supreme Court in Simmang v. Pennsylvania Fire Ins. Co., 102 Tex. 39, 112 S. W. 1044, which has never been overruled.” (Emphasis supplied.) 330 S.W.2d at 494 In Stone v. Schneider-Davis Company, 51 Tex.Civ.App. 517, 112 S.W. 133 (1908, no writ), appellant contended that certain property used in his restaurant business such as dishes, forks, cups and saucers, ranges, counters, stools and the like, was exempt from execution under Article 2397, Revised Civil Statutes of Texas (1895), which is now Article 3835, V.A.C.S. The court held: “Nor was the property levied upon exempt from execution as ‘the apparatus and furniture belonging to the trade and business’ of one engaged in the restaurant business. This exact question was decided adversely to appellant in the case of Frank v. Bean, 3 Willson, Civ.Cas.Ct.App. § 211. See, also, Heidenheimer Bros. v. Blumenkron, 56 Tex. 308; Bond v. Ellison, 2 Posey, Unrep.Cas. 388; Dodge v. Knight (Tex.) 16 S.W. 628; Mueller v. Richardson, 82 Tex. 363, 18 S.W. 693.” (51 Tex.Civ.App. 517, 112 S.W. at 134) Under the authority of Simmang v. Pennsylvania Fire Insurance Company, supra, we hold that the restaurant equipment here involved was not exempt from execution or forced sale, and that the trial court correctly granted appellees’ motion for summary judgment. The judgment of the trial court is affirmed. Footnotes [1] Article 3832 applies to a family, and Article 3835 applies to persons who are not constituents of a family; but both articles contain the identical provision with regard to tools of a trade, to wit: “All tools, apparatus and books belonging to any trade or profession.”