222 S.W. 227 (Tex.Com.App. 1920), 175-3190, Kinney v. Tri-State Tel. Co.

Docket Nº:175-3190
Citation:222 S.W. 227
Opinion Judge:SADLER, P.J. PHILLIPS, C.J.
Attorney:Charles H. Haines, of Denver, Colo., and Archibald Dorman, and Joseph M. Nealon, both of El Paso, for plaintiff in error. Jno. T. Hill, Leigh Clark, Dell W. Harrington, and Turney, Culwell, Holliday & Pollard, all of El Paso, for defendants in error.
Case Date:May 26, 1920
Court:Court of Commission of Appeals of Texas

Page 227

222 S.W. 227 (Tex.Com.App. 1920)




No. 175-3190

Court of Commission of Appeals of Texas, Section B.

May 26, 1920

Error to Court of Civil Appeals of Eighth Supreme Judicial District.

Action by Elsie Kinney and another against the Tri-State Telephone Company, in which Nellie Kinney intervened. Judgment for intervener was reversed and judgment was rendered for named plaintiff by Court of Civil Appeals (201 S.W. 1180), and intervener brings error. Judgment of Court of Civil Appeals reversed, and that of trial court affirmed.

Charles H. Haines, of Denver, Colo., and Archibald Dorman, and Joseph M. Nealon, both of El Paso, for plaintiff in error.

Jno. T. Hill, Leigh Clark, Dell W. Harrington, and Turney, Culwell, Holliday & Pollard, all of El Paso, for defendants in error.


This case is before us upon writ of error to the judgment of the Court of Civil Appeals, in which the judgment of the trial court is reversed and judgment rendered for the appellant, Elsie Kinney. 201 S.W. 1180. The statement and findings of fact by the Court of Civil Appeals are as follows:

"Elsie Kinney and Nellie O'Favenger brought this suit as the wife and mother 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 Elise 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...

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