
    SALE et ux. v. GERSDORFF.
    (No. 5737.)
    (Court of Civil Appeals of Texas. San Antonio.
    Nov. 29, 1916.)
    Appeal and Eseoe &wkey;>387(3) — Time fob Filing Appeal Bond — Extension—Change of Residence.
    Where the petition alleged that defendants, husband and wife, resided in the county, which was not denied, but defendants, in their answer, alleged that the property in controversy was their homestead and had been used openly and notoriously as such by them, the husband, by going to another county, could not place himself and wife in the category of nonresidents, and they could not, by affidavits, change their residence as fixed by the record to gain additional time to file appeal bond.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2064, 2066, 2067; Dec. Dig. &wkey;387(3).]
    Appeal from Fifty-Seventh District Court, Bexar County; R. B. Minor, Judge.
    Suit by Charles Gersdorff against A. P. Sale and wife. From a judgment for plaintiff, defendants appeal.
    Judgment affirmed.
    Forrest Campbell, of San Antonio, for appellants. McCollum Burnett, of San Antonio, for appellee.
   FLY, C. J.

It is alleged in the petition that appellants reside in Bexar county, and that allegation is not denied by appellants, but in their answer they allege that the property in controversy, is their homestead, and had been “used openly and notoriously as a part of the homestead by the defendants herein.” The appellants introduced evidence, to the effect that they had used the lots in controversy as a part of their homestead for eight years prior to the trial, and that they resided on lots near those in controversy. After appellants failed to file their appeal bond within the 20 days required by the statute, then it was discovered that A. P. Sale was not then, and is not now, a resident of Bexar county, and affidavits were produced to that effect. The residence of appellants was fixed by the allegations and proof at the trial, and the husband, by going to another county, cannot place himself and wife in the category of nonresidents. He and she claimed to live on the land in such a way as to make it their homestead, and they cannot, by affidavits, change the residence fixed by the record to gain additional time in which to file an appeal bond.

The motion for rehearing is overruled. 
      «tenFor other cases see same tonic and KEY-NUMBER In all Key-Numbered Digests and Indexes
     