
    PARSONS et al. v. McKINNEY. 
    
    (Court of Civil Appeals of Texas.
    Jan. 19, 1911.
    Rehearing Denied Feb. 2, 1911.)
    1. Homestead (§ 213) — Sale of Homestead —Injunction—Sufficiency of Petition.
    A petition for an injunction against an execution sale of plaintiff’s homestead, alleging that plaintiff was the head of a family and that the property was his homestead, that he owned no other realty, and that he was not living on the property because engaged in business in another county, but was cultivating it and had improved it with houses and other homestead improvements, that he was constantly improving the property out of such funds as he could spare, expecting shortly to return and permanently reside on the place, that the products raised each year thereon had been used in support of him and his family each year since he owned the place, that the barns and other outhouses were being constantly improved for his permanent home, and that he would suffer irreparable loss in being deprived of his means of support, his home, with its valuable improvements, was sufficient in the absence of special exception to entitle plaintiff to prove facts necessary to establish his homestead claim.
    [Ed. Note. — Eor other cases, see Homestead, Dec. Dig. § 213.]
    2. Homestead (§ 32) — Persons Entitled— Residence — Absence.
    If one has never lived on property, a secret intent to occupy it as a home at some indefinite time in the future would not invest it with a homestead character; hut, if he bought it to make a home thereon, he will be allowed a reasonable time to make necessary arrangements to occupy it as such; but his intent to so occupy it must be shown by acts of preparation begun with reasonable promptness, and its occupancy cannot be delayed beyond a reasonable time.
    [Ed. Note. — For other cases, see Homestead, Cent. Dig. §§ 40-43; Dec. Dig. § 32.]
    8. Injunction (§ 130) — Jurisdiction oe Judge.
    Where the order of a judge to whom application was made for an injunction restraining sale of a homestead on execution in a county other than that to which the writ was returnable recited that the judge of the district court of the county to which it was returnable was inaccessible, and the truth of the recital ■was not questioned, the judge could grant the injunction under Acts 30th Leg. c. 107, regulating the granting of injunctions by a district judge other than the judge of the court to which the writ is returnable, and providing that no district judge shall have power to grant any writ of injunction returnable to any other court than his own except that the act shall not apply to the granting of injunction by nonresident judges to stay execution, where proof is made to the satisfaction of such nonresident judge that it is impracticable for applicant to reach the resident judge and procure his action in time.
    [Ed. Note. — For other cases, see Injunction, Dec. Dig. § 139.]
    4. Injunction (§ 111) — Action—Venue—Application oe Statute.
    Sayles’ Ann. Oiv. St. 1897, art. 1194, subd. 17, providing that no inhabitant of the state shall be sued out of the county of his domicile, except when suit is 'brought to enjoin execution of a judgment, in which case the suit may be brought in the county where the judgment was rendered, and article 2996, providing that injunctions to stay execution on a judgment shall be returnable to and tried in the court where such judgment was rendered, apply only when suit is to restrain execution of a judgment because of some infirmity in the, judgment or the writ, or where some equity has arisen since the judgment which should prevent enforcement, and does not apply where the injunction is only to prevent sale of exempt property, in which ease suit may be brought in any court having jurisdiction of the subject-matter in the county in which any defendant resides or in which the property, if realty, is situated.
    [Ed. Note. — For other cases, see Injunction, Dec. Dig. § 111.]
    Appeal from District Court, Tyler County; W. H. Pope, Judge.
    Action by John McKinney against E. T. Parsons and others. Judgment for plaintiff, and defendants appeal.
    Affirmed.
    Thos. J. Baten, for appellants.
    
      
      For other oases see same topic and section NUMBER in Deo. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
    
      
       Writ of error denied by Supreme Court.
    
    
      
      For other oases see same topic and section NUMBER, in Deo. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   PLEASANTS, C. J.

This appeal is from an order of Hon. W. H. Pope, judge of the district court of Jefferson county, made in chambers, granting a temporary injunction restraining the sale of a tract of land in Tyler county belonging to appellee and claimed to be his homestead. Appellant E. T. Parsons, sheriff of Tyler county, levied upon the land on the 9th day of June, 1910, under an execution issued on a judgment rendered by the county court of Jefferson county on April 5, 1910, in favor of appellant W. R. Swearingen against appellee for the sum of $320, and advertised the land for sale on July 5, 1910. Appellee on July 4, 1910, presented to Hon. W. H; Pope, judge of the district court of Jefferson county, a petition addressed to the district court of Tyler county praying that the sale of said land be enjoined on the ground that it was appellee’s homestead. The order of Judge Pope granting a temporary injunction was indorsed on said petition, and is as follows; “July 4, 1910. The above and foregoing petition for injunction having been presented to me in chambers, and it being made to appear that the Honorable W. B. Powell, judge of the district court of Tyler County., Tex., is inaccessible, after reading said petition and considering same it is ordered that the writ of injunction issue as prayed for in said petition upon the appellant filing a good and sufficient bond in the sum of $500 payable and conditioned as required by law and approved by the clerk of the district court of Tyler county, Tex., he will issue said writ.” This order was filed in the office of the clerk of the district court of Tyler county on July 5, 1910, and the writ of injunction therein granted was issued and served upon appellants, and in due time appellants perfected this appeal therefrom.

Under appropriate assignments appellants complain of the order upon the following grounds: First. Because the petition for injunction is too vague, indefinite, and uncertain in its allegations to authorize the issuance of the writ, and contains no sufficient allegation of facts showing that plaintiff has any homestead rights in the premises in controversy. Second. Because the petition fails to state facts necessary to give the district judge of Jefferson county authority or jurisdiction to order the issuance of an injunction in a suit brought in the district court of Tyler county. Third. Because the suit should have been brought in the county court of Jefferson county, the court in which the judgment, the execution of which is sought to be stayed by said injunction, was rendered.

None of these objections to the order are valid. The petition is inartistically drawn, and the facts alleged upon which the homestead claim is based are meager; but we cannot say that the allegations are so vague, uncertain, and indefinite as to make it bad on general demurrer, nor that the allegations as to plaintiff’s homestead rights in the property are insufficient to admit proof of facts showing that the property was plaintiff’s homestead.

It is alleged in the petition that the plaintiff is the head of a family, and that the property is his homestead, and that he owns no other real estate. It is further alleged:

“That plaintiff is not living upon said property for the reason that he is engaged in business in Jefferson county, Tex., but is cultivating said property and has improved property with houses, fields, and barns and other homestead improvements. That plaintiff is constantly improving said property out of such funds as he can spare, having in view in a short time returning to Tyler county and permanently residing on said place. That the products raised each year on said property have been used in the support of plaintiff and his family each and every year since he owned it, and the barns and other outhouses are being constantly improved for the purpose of this plaintiff’s permanent home. That he will suffer irreparable loss and injury in being thus deprived of his means of support, his home, its valuable improvements.”

In the absence of a special exception, we think these allegations are sufficient to entitle plaintiff to prove facts necessary to establish his homestead claim. If he has never lived on the property, his mere secret intention to at some indefinite time in the future occupy it as a home would not invest it with a homestead character. If, however, he bought it for the purpose of making his home thereon, he would be allowed a, reasonable time in which to make necessary arrangements to occupy it as such; but his intention to so occupy it must be shown by acts of preparation begun with reasonable promptness, and its occupancy could not be delayed beyond a reasonable time. Gardner v. Douglass, 64 Tex. 76; Barnes v. White, 63 Tex. 628; Gallagher v. Keller, 4 Tex. Civ. App. 454, 23 S. W. 296.

The provisions of the act of the Thirtieth Legislature regulating the granting of injunctions and prescribing what the petition must show to authorize the granting of an injunction by a district judge other than the judge of the court to which the writ is returnable does -not apply to an injunction to restrain the sale of a homestead. Gen. Laws 30th Leg. p. 206. It is expressly provided by section 1 of said act that nothing therein “shall apply to the granting of writs of injunction by nonresident judges to stay executions, * * * where proof is made to the satisfaction of such nonresident judge that it is impracticable for the applicant to reach the resident judge and procure his action in time to effectuate the purpose of the application.”

The order of Judge Pope before set out recites, in effect, that the proof required by the provisions of the statute above quoted was made, and the truth of this recital is not questioned. Such being the state of the record, it cannot be held that Judge Pope was without power or jurisdiction to grant the injunction. The opinion of this court in the case of Lee v. Broocks, 118 S. W. 164, should be construed in the light of the facts of that case. The provision of the statute above quoted was not in the mind of the court when that opinion was rendered, and there was nothing in the record in that case to indicate that the proof required by said provision of the statute was made before the nonresident judge.

Subdivision 17 of article 1194 and article 2996, Sayles’ Ann. Oiv. St. 1897, apply only when the suit is to restrain the execution of a judgment because of some infirmity in the judgment or the writ, or of some equity which has arisen since the rendition of the judgment which should prevent its enforcement, and does not apply when the purpose of the injunction is only to prevent the sale of exempt property, and in such case the suit can be brought in any court of the county in which any of the defendants reside or in which the property, if real estate, is situated, having jurisdiction of the subject-matter of the suit. Van Ratcliffe v. Call, 72 Tex. 492, 10 S. W. 678; Leachman v. Capps, 89 Tex. 690, 36 S. W. 250.

We think the judgment of the court below should be affirmed, and it has been so ordered.

Affirmed.  