Askew v. Rountree, 10284.

• Decision Date: 21 September 1938
• Docket Number: No. 10284.,10284.
• Citation: 120 S.W.2d 117
• Parties: ASKEW v. ROUNTREE et al.
• Court: Texas Court of Appeals

120 S.W.2d 117

ASKEW v. ROUNTREE et al.

No. 10284.

Court of Civil Appeals of Texas. San Antonio.

September 21, 1938.

Rehearing Denied October 12, 1938.

Error from District Court, San Patricio County; G. W. Gayle, Judge.

Trespass to try title by G. W. Askew against Amy Askew Rountree and others. To review an adverse judgment, plaintiff brings error.

Affirmed.

See, also, 111 S.W.2d 1133.

J. B. Lewright, R. G. Harris, and Chas. F. Guenther, Jr., all of San Antonio, for plaintiff in error.

Eskridge & Groce, of San Antonio, Vinson, Elkins, Weems & Francis, of Houston, and Todd & Todd and Sidney P. Chandler, all of Corpus Christi, for defendant in error.

SLATTON, Justice.

G. W. Askew brought this suit in the District Court of San Patricio County against Mrs. Amy Askew Rountree, her husband, and others, to recover an undivided one-half interest in and to 160 acres of land situated in said County, and one lot in Taft. His trial pleading was in the form of trespass to try title. G. W. Askew and Amy Askew married August 26, 1924. Thereafter the property in suit was conveyed to G. W. Askew. Amy Askew filed suit against G. W. Askew on April 27, 1934, for divorce. It was alleged in her action for divorce that G. W. Askew was a resident of the Republic of Mexico; that the land in suit was community property; and that a certain ranch in the Republic of Mexico was a part of the community property. It was also alleged that a daughter was born to such marriage and was then eight years of age; she prayed for divorce, custody of the child, and for title to the entire community estate situated in this State, which included the land in suit. G. W. Askew was served with out of State notice and signed a waiver. September 18, 1934, a judgment was rendered granting the divorce and the custody of the minor child was given to Mrs. Askew. The property was disposed of by the decree as follows:

"In the opinion of the court said property should be awarded to the plaintiff for the support of herself and said minor child of said marriage and it is therefore ordered, adjudged and decreed by the court that all title, right and interest to the hereinafter described property be divested out of the defendant, G. W. Askew, and invested in the plaintiff, Amy Askew."

Defendants in error filed defensive pleadings and cross-actions in trespass to try title.

The trial was to the court, which resulted in a judgment denying recovery to G. W. Askew and he prosecutes writ of error.

Plaintiff in error contends that, the real estate in suit being community property of G. W. Askew and Amy Askew, the divorce decree which attempted to divest title out of plaintiff in error and invest title in Amy Askew, one of the defendants in error, is utterly null and void and in direct violation of Art. 4638, Revised Civil Statutes 1925.

The present suit, being in trespass to try title, to recover an interest in land awarded to Amy Askew by judgment dated September 18, 1934, involves a collateral attack upon said judgment. Watson v. Hopkins, 27 Tex. 637.

If the judgment dated September 18, 1934, in the suit of Amy Askew versus G. W. Askew, wherein the title of the land was divested out of G. W. Askew and invested into Amy Askew is void, "It is good nowhere and bad everywhere." Paul v. Willis, 69 Tex. 261, 7 S.W. 357.

Much confusion is to be found in the decisions by reason of indiscriminate use of the words void and voidable in speaking of judgments. Murchison v. White, 54 Tex. 78; Southern Surety Co. v. Texas Oil Clearing House, Tex.Com. App., 281 S.W. 1045. The chief distinction between a void judgment and a valid one is the absence of jurisdiction in the court that rendered the judgment. If the court has not jurisdiction the judgment is void provided the lack of jurisdiction is apparent from the judgment or its record. 25 Tex.Jur. § 257, p. 698.

Other cases seem to relax the rule which require the lack of jurisdiction to be apparent upon the judgment or its record. Templeton v. Ferguson, 89 Tex. 47, 33 S. W. 329; Cline v. Niblo, 117 Tex. 474, 8 S. W.2d 633, 66 A.L.R. 916.

In the cause of Amy Askew v. G. W. Askew the defendant Askew was served with process in accordance with law and signed a waiver, hence jurisdiction of the person was obtained. The nature of the suit of Amy Askew was for divorce, custody of the minor child, and for title to land situated in San Patricio County, Texas. According to the pleading of Amy Askew the community estate of the marriage of Amy and G. W. Askew consisted of the land involved in this suit and the Ranch in Mexico. Thus the court had jurisdiction of the parties and that part of the community estate situated within this State. Art. 4638, R.C.S. 1925, provides: "The court pronouncing a decree of divorce shall also decree and order a division of the estate of the parties in such a way as the court shall deem just and right, having due regard to the rights of each party and their children, if any. Nothing herein shall be construed to compel either party to divest himself or herself of the title to real estate."

Under this statute the courts of this State have held that "In granting a divorce, the Court may make such a division, at least, of the community property, in reference to the condition of the parties, and the support and education of the children, as may be equitable and just," citing the Fitts Case, Fitts v. Fitts, 14 Tex. 443; Trimble v. Trimble, 15 Tex. 18, 19. And in the case of Simons v. Simons, 23 Tex. 344, after quoting the statute, it is said: "This provision, taken as a whole, evidently intends to invest the district court with the power to exercise, within reasonable limits, a discretion in making partition of property between persons, who are divorced by the court, from the bonds of matrimony."

In the case of Young v. Young, Tex. Civ.App., 23 S.W. 83, it is said: "If, in the division of the community estate, it should be found proper to adjudge to her the whole of the lots, in satisfaction of her interest in the entire estate, such a decree would not be forbidden by the provision of the statute that neither party shall be compelled `to divest him or herself of the title to real estate.'"

The court had not jurisdiction to divide the community estate situated in the Republic of Mexico. Moor v. Moor, 24 Tex.Civ.App. 150, 57 S.W. 992, 255 S.W. 231. That part of the community estate could not be reached. Amy Askew was entitled under the statute quoted to a division of all the community estate which was owned by her and her husband. In this situation in order for the court to give effect to the provision of the first part of the statute it was necessary to consider that a part of the community estate of the parties was in the Republic of Mexico which could not be reached for partition, but could be considered in the partition of that part of the estate situated in the State of Texas. Moor v. Moor, supra.

The decisions of our courts demonstrate, we think, that the court rendering the judgment in the cause of Askew v. Askew had jurisdiction of the persons and the subject matter, that is of Amy Askew and G. W. Askew, and the community estate situated within this State.

This brings us to the inquiry, does the judgment in said cause show, upon the face of the judgment or its record, that the court in divesting title to real estate out of G. W. Askew and investing the same into Amy Askew exceeded the power given and restricted in the statute above quoted? It must be kept in mind that this proceeding is a collateral attack upon the judgment and in such a proceeding it is a rule of almost universal application that a judgment of a domestic court of general jurisdiction rendered in the exercise of its usual powers imports absolute verity; and every reasonable presumption that may be necessary to uphold it will be indulged. 25 Tex.Jur. § 319, p. 831.

Giving the...