Opinion
No. 5737.
November 29, 1916.
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.
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.