Kinney v. Tri-State Telephone Co.

• Decision Date: 21 February 1918
• Docket Number: (No. 796.)
• Citation: 201 S.W. 1180
• Parties: KINNEY et al. v. TRI-STATE TELEPHONE CO. et al.
• Court: Texas Court of Appeals

201 S.W. 1180

KINNEY et al. v. TRI-STATE TELEPHONE CO. et al.

(No. 796.)

Court of Civil Appeals of Texas. El Paso.

February 21, 1918.

Rehearing Denied March 21, 1918.

Appeal from District Court, El Paso County; P. R. Price, Judge.

Action by Elsie Kinney and another against the Tri-State Telephone Company, wherein Nellie Kinney intervened. From judgment for the intervener, plaintiffs appeal. Reversed and rendered.

Jno. T. Hill, Leigh Clark, and Del W. Harrington, all of El Paso, for appellants. Turney, Culwell, Holliday & Pollard and A. Dorman, all of El Paso, C. H. Haines, of Denver, Colo., and Jos. M. Nealon, of El Paso, for appellees.

HARPER, C. J.

Elsie Kinney and Nellie O'Favenger brought this suit as the wife and another of H. B. Kinney, deceased, against the Tri-State Telephone Company for $3,060, being the amount of a benefit fund in the latter's hands, due, under a plan of insurance to be hereinafter described, to them as the beneficiaries therein. Nellie Kinney intervened and claims the fund, alleging that she was the lawful wife of said Kinney, and, further, that she had not been divorced from deceased. The Telephone Company answered that it had the money; that, by the terms of the contract, it was payable, first to the wife of deceased, second to the children, and third to the dependent relatives, and that in the absence of either to lapse, tendered the money into court, to be paid to the party to whom the court determined by its judgment it should be paid. This appeal is from a judgment in favor of intervener, Nellie Kinney, for the entire fund.

Findings of Facts.

The findings of facts by the trial court are very lengthy, so we make such statement of the undisputed facts as are, in our judgment, pertinent to the issues raised by the assignments and counter-propositions of appellee.

Harry B. Kinney and Nellie Flaherty were married June 16, 1909, separated October 5, 1911, and never lived together afterwards. She continued to live in the state of Colorado to the date of the institution of this suit. March 26, 1914, he filed his complaint for divorce in the court of Los Angeles county, Cal. Service was had by delivering a summons to Nellie Kinney in Colorado, and on August 19, 1914, the following judgment was entered:

"In the Superior Court of the State of California in and for the County of Los Angeles.

"Harry B. Kinney, Plaintiff, vs. Nellie Kinney, Defendant. Interlocutory Judgment by Default in Action for Divorce.

"This cause came on regularly to be heard the 19th day of August, 1914, before the said superior court, in department 5 thereof; Geo. S. Richardson appearing as attorney for plaintiff herein, and no one appearing for said defendant. And it appearing that the defendant was duly served with process herein, and said defendant not having answered plaintiff's complaint herein, within the time provided by law or otherwise; and the default of the defendant for not answering the said complaint having been duly entered herein in the manner provided by law; and evidence having been introduced on behalf of said plaintiff at said hearing of this cause; and said cause having been submitted to the court for its consideration and decision:

"Now therefore said court, having duly considered the same, makes its findings of fact and decision as follows: The court finds that all of the allegations contained in the complaint are true, and that a divorce ought to be granted as prayed for in said complaint. Wherefore it is hereby ordered, adjudged, and decreed that the said plaintiff is entitled to a divorce from the defendant; that when one year shall have expired after the entry of this interlocutory judgment a final judgment and decree shall be entered granting a divorce herein, wherein and whereby the bonds of matrimony heretofore existing between said plaintiff and said defendant shall be dissolved, and at that time the court shall grant such other and further relief as may be necessary to complete disposition of this action.

                  "Done in open court this 19th day of August
                A. D. 1914.     Charles Wellborn, Judge."
                

On November 14, 1914, Harry B. Kinney and Elsie Kinney were married and lived together as husband and wife to his death. She believed that he had obtained a divorce, though she later and before his death, found and read the above decree. Concerning the matters next above she testified:

"We became engaged some time about the first of December, 1912. I knew he had been married. He told me he had been married and he intended getting a divorce when I first met him —when I had known him about a week. I learned that he actually instituted a suit for divorce. I did not understand that an interlocutory decree had been entered before our marriage. I did not know anything about what happened to the case. I thought I knew he had been divorced because he told me he had. I did not see a copy of the decree before we were married, but I did before Harry's death see a copy of the interlocutory decree. I read it. It was about December 1, 1912, when we became engaged. That was during his first trip to Raton."

On January 14, 1916, Harry B. Kinney was accidentally killed while in the service of the Telephone Company.

On February 10, 1916, deceased's attorneys of record appeared in the court of Los Angeles, and upon motion the above decree was made final by the following decree:

"In the Superior Court of the State of California in and for the County of Los Angeles.

"Harry B. Kinney, Plaintiff, vs. Nellie Kinney, Defendant. Final Decree of Divorce.

"This cause came on regularly to be heard the 19th day of August, A. D. 1914, Geo. S. Richardson appearing as attorney for plaintiff herein, and not any one appearing for said defendant, and said defendant having been duly served with summons and copy of complaint herein, and said defendant not having answered plaintiff's complaint herein within the time provided by law or otherwise, and the default of said defendant for not answering said complaint having therefore been duly entered herein in the manner provided by law, and evidence having been introduced on behalf of said plaintiff herein on said 19th day of August, A. D. 1914, and said cause having been submitted to the court for its consideration and decision, and the court having duly considered the same, filed its findings of fact and decision in writing therein on said 19th day of August, 1914, and on said 20th day of August, 1914, entered its interlocutory decree ordering and decreeing that upon the expiration of the period of one year from the date of entry of said interlocutory decree a final judgment and decree be entered herein ordering and decreeing that the bonds of matrimony heretofore existing between said plaintiff and said defendant be dissolved, and freeing them and each of them from each and all of the obligations thereof, and said findings of fact and conclusions of law, and said interlocutory decree, having been duly filed and entered, and said period of one year having elapsed since the entry of said interlocutory decree, and no appeal having been taken from said interlocutory decree, and said interlocutory decree not having been modified or set aside, and the same being in full force and effect, and said plaintiff, Harry B. Kinney, through his attorney, Geo. S. Richardson, having in open court on this day, to wit, the 10th day of February, A. D. 1916, moved said superior court in and for the county of Los Angeles, in department 5 thereof, for a final order, judgment, and decree in accordance with said findings of fact and conclusions of law, and said interlocutory decree and said motion having been duly heard and no one appearing to contest the same, said motion was duly granted by said court, and said court having made its order that a final order, judgment, and decree be made and entered herein in accordance with said findings of fact and conclusions of law and said interlocutory decree:

"Now, therefore, it is hereby ordered and decreed that the bonds of matrimony heretofore existing between said plaintiff, Harry B. Kinney, and said defendant, Nellie Kinney, be and the same...