Aucutt v. Aucutt, 1684-6182.

• Decision Date: 24 June 1933
• Docket Number: No. 1684-6182.,1684-6182.
• Citation: 62 S.W.2d 77
• Parties: AUCUTT v. AUCUTT et al.
• Court: Texas Supreme Court

62 S.W.2d 77

AUCUTT v. AUCUTT et al.

No. 1684-6182.

Commission of Appeals of Texas, Section A.

June 24, 1933.

Certified Questions from Court of Civil Appeals of Seventh Supreme Judicial District.

Action by Mabel Aucutt against John W. Aucutt and another to cancel or modify judgment rendered against plaintiff. From judgment of dismissal, plaintiff appealed to Court of Civil Appeals, which certified question.

Question answered in affirmative.

Vickers & Campbell, of Lubbock, for appellant.

Walter F. Schenk, of Lubbock, for appellees.

CRITZ, Judge.

This case is before the Supreme Court on certified question from the Court of Civil Appeals for the Seventh District at Amarillo. The certificate states the issues of the case and the question certified. It is as follows:

"In this case the plaintiff Mabel Aucutt instituted this suit in the District Court of Lubbock County, Texas, against the defendant John W. Aucutt and W. F. Schenck, to cancel or modify a judgment rendered against her in the same court on June 16, 1930, cause No. 3017, Mabel Aucutt vs. John W. Aucutt.

"On July 18, 1927, Mabel Aucutt filed suit No. 3017 against John W. Aucutt to obtain a divorce and to have confirmed a contract for the settlement of their property rights which had been entered into by them before said suit was filed.

"The plaintiff alleged that she was and had been for a period of twelve months an actual bona fide inhabitant of the State of Texas and had resided in Lubbock County for six months next preceding the filing of her suit and that John W. Aucutt resided in Lubbock County, Texas. Her pleadings were sufficient to authorize the granting of a divorce, if sustained by proof.

"On September 18, 1928, in cause No. 3017, John W. Aucutt answered the allegations relied on by his wife Mabel Aucutt for a divorce, and filed a cross action in which he sought judgment for a divorce against the plaintiff, attacked the validity of the contract settling their property rights, asked that it be cancelled, a divorce granted to him and the community property partitioned between him and his wife. In his cross action John W. Aucutt did not allege that he had been for a period of twelve months an actual bona fide inhabitant of the State of Texas and had resided in Lubbock County for six months next preceding the filing of his cross action. Otherwise his allegations were sufficient for granting the relief sought.

"On October 6, 1928, the plaintiff filed a second amended original petition in which she repeated substantially the allegations in her original petition and alleged that when her suit was filed John W. Aucutt resided in Lubbock County, Texas, but since the filing thereof and the securing of service, he had moved to Nolan County, Texas.

"The case was continued from time to time by agreement until November 7, 1928, on which date the case was called, both sides announced ready for trial, a jury was selected, but before the trial was completed the parties reported to the Court that a settlement was pending and the jury was discharged and the case continued. On March 20, 1930, the plaintiff Mabel Aucutt dismissed her suit and the defendant John W. Aucutt dismissed his cross action. On April 4, 1930, the cause was reinstated on the docket of said court and on the same day the case was continued on application of the plaintiff.

"On June 16, 1930, the plaintiff again sought to continue the case, which was resisted by the defendant, her application to continue overruled, and she thereupon requested that her case be nonsuited, which was granted by the Court. The defendant announced ready on his cross action, a hearing was had thereon before the Court and judgment rendered granting defendant a divorce against the plaintiff and a decree entered cancelling the agreement settling their property rights and partitioning the community property between them.

"On January 21, 1931, the instant suit was filed by plaintiff attacking the validity of the judgment rendered on the defendant's cross action in cause No. 3017, alleging that such judgment is void because the Court was without jurisdiction to hear and determine the cause, as the plaintiff had been granted a nonsuit and the defendant in his cross petition did not allege nor did he prove that he was a resident of Lubbock County, Texas, on Sept. 18, 1928, the date on which he filed his cross action.

"The Court sustained a plea in abatement to the contentions of plaintiff in the present suit and dismissed her case, from which action she prosecuted an appeal to this Court.

"The testimony discloses that on the date plaintiff filed her original petition in cause No. 3017, both plaintiff and defendant in said suit were and had been residing in Lubbock County since 1911 and that the plaintiff still resided in said county on the date she filed her second amended original petition, Oct. 6, 1928, but that the defendant at that time and on June 16, 1930, was and still is a resident citizen of Nolan County, Texas. That the plaintiff did not live in Lubbock County in 1929 or 1930. That after the judgment on June 16, 1930, in cause No. 3017, John W. Aucutt had conveyed to the defendant W. F. Schenck an interest in the property decreed to John W. Aucutt by said judgment.

"The appellant contends that the Court was without jurisdiction to hear and determine the cross action of John W. Aucutt in cause No. 3017, relying on Mansur v. Mansur (Tex. Civ. App.) 21 S.W.(2d) 38.

"The appellees' contention is that the Court had jurisdiction of the cross action under the holding of Charlton v. Charlton (Tex. Civ. App.) 141 S. W. 290.

"On account of the apparent conflict indicated, we deem it advisable to certify to Your Honorable Court for decision the following question:

"Did the District Court of Lubbock County, Texas, have jurisdiction on June 16, 1930, after plaintiff's nonsuit had been granted, to decree John W. Aucutt a divorce on his cross action?"

Opinion.

A correct answer to the above-certified question makes it expedient for us to discuss the following constitutional and statutory laws:

Section 1 of article 5 of our State Constitution provides:

"The judicial power of this state shall be vested, * * * in district courts. * * *

"The legislature may establish such other courts as it may deem necessary, and prescribe the jurisdiction and organization thereof, and may conform the jurisdiction of the district and other inferior courts thereto."

Section 8 of article 5 of our State Constitution provides:

"The district court shall have original jurisdiction * * * of all cases of divorce. * * *"

Article 1906, R. C. S. 1925, provides:

"The district court shall have original jurisdiction in civil cases of: * * *

"2. Cases of divorce and dissolution of marriage."

Article 1995, R. C. S. 1925, provides:

"No person who is an inhabitant of this State shall be sued out of the county in which he has his domicile except in the following cases: * * *

"16. Divorce.—Suits for divorce shall be brought in the county in which the plaintiff shall have resided for six months next preceding the bringing of the suit."

Article 4631, R. C. S. 1925, provides:

"No suit for divorce shall be maintained in the courts of this State unless the petitioner for such divorce shall at the time of exhibiting his or her petition, be an actual bona fide inhabitant of this State for a period of twelve months, and shall have resided in the county where the suit is filed for six months next preceding the filing of same. * * *"

It will be noted that section 1 of article 5 of our State Constitution establishes the district court as a constitutional court.

It will further be noted that, by the provisions of section 8 of article 5 of our State Constitution, all district courts are given original jurisdiction "of all cases of divorce." Subdivision 2 of article 1906, supra, is but a statutory declaration of the constitutional jurisdiction of district courts in this particular.

A reading of the constitutional provision as contained in section 8 of article 5, supra, demonstrates that it is all embracing in its provisions, and operates to vest all district courts in this state with jurisdiction "of all divorce cases." Since district courts of this state are clothed by the Constitution with divorce jurisdiction, it does not lie within the power of the Legislature to take such jurisdiction away from them. Reasonover v. Reasonover (Tex. Sup.) 58 S.W.(2d) 817. Of course the Legislature has power, within proper bounds, to prescribe rules of practice and procedure for the exercise of divorce jurisdiction by our district courts.

An examination of subdivision 16 of article 1995, supra, demonstrates that it is purely a venue statute. This is evident if for no other reason because it appears in a purely venue article.

When we come to examine article 4631, we are convinced that it is something more than a mere venue statute in respect to the six months' residence provision therein contained. As already shown, the matter of mere venue in this respect is fully covered by subdivision 16 of article 1995, supra. If article 4631 is a mere venue statute in regard to the six months' residence provision contained therein, it is pure surplusage in that respect, because that matter is covered by the former article. It will here be noted that the six months' residence in the county provision of article 4631 is coupled with the twelve months' residence in the state provision of the same article. In this regard we think article 4631 has effect to define the qualifications of the...