Commercial Bank v. Simmons

101 So. 126, 156 La. 743, 1924 La. LEXIS 2090

• Court: Supreme Court of Louisiana
• Decided: March 24, 1924
• Docket: No. 25894
• Status: Published

Opinions

O’NIELL, C. J.

This is an appeal from a judgment recognizing the defendant’s right to a homestead exemption. The appellant, Commercial Bank, pleaded in the district court that the defendant’s petition praying for the homestead exemption did not disclose a right to the exemption, because it was not alleged that the defendant did not own any other property or .have other means. It is conceded that, in other respects, the' petition did disclose that the claimant of the homestead exemption was entitled to it. The only question in the case, therefore, is whether the judge ruled right in overruling the exception of no cause or right of action.

There is nothing in article 11 of the Constitution, allowing homestead exemptions, that requires that the value of other property owned by the head of the family shall be deducted from his homestead exemption. The only requirement in that respect is that, from the benefit of a homestead exemption allowed to a married man, there shall be deducted the value of property or means owned and enjoyed by his wife. See third paragraph of first section of article 11. In the Constitution of 189S and of 1913, the stipulation was that a married man should not have the benefit of a homestead exemption if his wife owned and enjoyed property or means to the amount of $2,000. See third paragraph of article 244.

Referring to that paragraph in article 244 of the Constitution of 1913, in the case of H. G. Smith & Sons v. Succession of Jenkins, 147 La. 437, 85 South. 68, it was said:

“We have no authority to rewrite or transpose the constitutional provision, which merely denies the exemption to a husband whose wife owns and enjoys property or means to the amount of $2,000, so as to deprive of the exemption a widow who has more than $2,000 in cash. * * *

“It .has been de.cided by this court that a debtor’s having other property, or having fraudulently disposed ' of other property, does not deprive him of the homestead exemption. See Abramson v. Larabee, 140 La. 825, 74 South. 162; White v. Givens, 29 La. Ann. 571. Whether it would have been good policy for article 244 of the Constitution to contain the proviso that a debtor should not be allowed the homestead exemption if he owns other property worth $2,000 exempt from seizure or beyond the reach of his creditors is not for us to say. The Constitution does not contain such proviso, and we have no authority to supply it.”

Under the authority quoted, the ruling on the exception of no cause of action was correct.

It appears from the record that the bank appealed also from a judgment rendered in favor of a third opponent, J. M. Bryan, recognizing a chattel mortgage in his favor on four mules and a mare, which were seized as the property of the defendant, Simmons, to satisfy a judgment in favor of the bank. The attorney for the bank did not argue the ease or file a brief. Neither did Bryan’s attorney argue the case or file a brief. We do not find any error in the judgment rendered in favor of Bryan.

The judgments appealed from are affirmed at appellant’s cost.