
    L. A. BARNES v. A. H. BINFORD et al.
    No. 9599.
    Court of Civil Appeals of Texas. Galveston.
    July 9, 1931.
    M. E. Gates, of Huntsville, for appellant.
   GRAVES, J.

In this cause appellant sought an injunction restraining the appellees from selling a certain 10 acres of land at Bedias in Grimes county, which he claimed as the homestead of himself and family. The trial court after hearing the evidence of both sides peremptorily instructed the jury to find for the appellees upon a holding that “the uncontradicted testimony shows that the premises situated in Grimes County, Texas, and owned by the plaintiff, L. A. Barnes, had been permanently abandoned by the plaintiff as a homestead, and another homestead had been acquired and was being used and enjoyed by the plaintiff and his family, at the time of the levy of the writ of execution upon the lands described in plaintiff’s petition.”

After a careful examination of the statement of facts, this court concludes that the instructed verdict and consequent judgment were erroneous, in that the evidence, clearly raises the issue of fact as to whether or not appellant’s abandonment of the Grimes county home was merely temporary with the intention at the time of thereafter returning to it and continuing to make it the homestead of his family. The judgment will therefore be reversed, and the cause remanded for a trial upon that issue.

Reversed and remanded.  