Arbuckle v. Arbuckle, 2814.

• Decision Date: 21 October 1948
• Docket Number: No. 2814.,2814.
• Citation: 214 S.W.2d 821
• Parties: ARBUCKLE v. ARBUCKLE et al.
• Court: Texas Court of Appeals

214 S.W.2d 821

ARBUCKLE v. ARBUCKLE et al.

No. 2814.

Court of Civil Appeals of Texas. Tenth District. Waco.

October 21, 1948.

Rehearing Denied November 24, 1948.

Appeal from District Court, Cameron County; Jas. S. Graham, Judge.

Action by Gordon G. Arbuckle against Delia Raines Arbuckle and others for a divorce from named defendant and for a property settlement and accounting against all defendants wherein named defendant filed a cross-action. From a judgment denying divorce, plaintiff appeals.

Affirmed.

Faulk, Sharpe & Cunningham, of Brownsville, for appellant.

John C. Myrick, of Harlingen, for appellees.

LESTER, Chief Justice.

This action was instituted by appellant, Gordon G. Arbuckle, against appellees, Delia Raines Arbuckle, Ralph T. Curry and Mrs. Ralph T. Curry, for a divorce from appellee Delia Raines Arbuckle and a property settlement and accounting against all the appellees.

Appellee Delia Raines Arbuckle filed a cross-action for divorce and property settlement. Appellees Mr. and Mrs. Ralph T. Curry answered, in substance, that they had bought the grocery store involved, and leased the other property involved for a period of three years from appellee Delia Raines Arbuckle.

The case was tried to the court and jury, and, among other things, it was found that the appellee Delia Raines Arbuckle had been guilty of harsh, cruel and inhuman treatment of such a nature as to render appellant's living with her insupportable, which ordinarily would have supported a judgment for divorce in favor of appellant. However, the trial court concluded there was no evidence to support the finding on said issue of divorce and entered judgment denying a divorce to both appellant and appellee Delia Raines Arbuckle, and further decreed that since a divorce was not being granted, the trial court had no jurisdiction to adjudicate property rights as between appellant and appellee Delia Raines Arbuckle, and therefore their said property rights remained as they were at the time of institution of the suit. The judgment of the court further ordered that appellant take nothing by his suit against appellees Mr. and Mrs. Ralph T. Curry, which denied appellant the relief sought by him to set aside a three-year lease on the Templeton property, and to set aside the sale of the stock of groceries.

The evidence shows that at the time appellant and Mrs. Arbuckle married in 1940, appellant owned a one-half interest in a little home in the town of Combes, Texas, the other half belonging to his children by a previous marriage; that Mrs. Arbuckle owned a home and a small grocery store in Robertson county which she operated up to the time of her marriage to the appellant, and in addition thereto she had several hundred dollars in cash; that the home of the appellant was in a somewhat run-down condition and needed substantial improvements and she spent several hundred dollars of her own money in making said improvements; that in 1944 they traded the home in Combes for what is referred to as the Templeton property, consisting of a small store and several rooms used as living quarters and in which appellant and Mrs. Arbuckle lived as their home thereafter. Mrs. Arbuckle had gone into the grocery business prior to obtaining this property and she continued her business in the store located upon the Templeton property. The appellant operated a barber shop in part of said building. The purchase price of this property was fixed at $3,000.00. The jury found that the value of the separate property of Mrs. Arbuckle that went into the purchase of said property was the sum of $900.00, and that the separate property of the appellant was of the value of $1100.00, but one-half of which was owned by his two children. The deferred payments were made by Mrs. Arbuckle out of the earnings of her grocery store. She later bought the interest of appellant's children, which was also paid out of the earnings of the grocery store. Thereafter, on January 9, 1946, appellant executed a warranty deed, conveying the Templeton property to Mrs. Arbuckle, and at that time she executed to him a note for the sum of $500.00, payable at her death. Soon thereafter Mrs. Arbuckle had a heart attack and was no longer able to operate the grocery store as she had previously. In the spring or early summer of 1946 her daughter and son-in-law, Mr. and Mrs. Ralph T. Curry, went to Combes to assist her in operating said store and with a view of buying the business, and on August 1st they took over the grocery store under contract of...