Bantuelle v. Bantuelle, 6221.

• Decision Date: 07 June 1946
• Docket Number: No. 6221.,6221.
• Citation: 195 S.W.2d 686
• Parties: BANTUELLE v. BANTUELLE.
• Court: Texas Court of Appeals

195 S.W.2d 686

BANTUELLE v. BANTUELLE.

No. 6221.

Court of Civil Appeals of Texas. Texarkana.

June 7, 1946.

Rehearing Denied June 13, 1946.

Appeal from District Court, Bowie County; N. L. Dalby, Judge.

Action for divorce by Vidar Lou Bantuelle against Fred Bantuelle, wherein defendant filed a cross-action. From a judgment granting plaintiff a divorce and custody of minor children with a provision for their support, and adjudicating property rights between the parties, defendant appeals.

Judgment affirmed.

Lincoln, Harris & Kennedy, of Texarkana, for appellant.

Rodgers, Levee, Blalock & Rodgers, and Shaver, Stewart & Jones, all of Texarkana, for appellee.

WILLIAMS, Justice.

In this divorce action filed by Vidar Lou Bantuelle she was awarded the divorce, the custody of their two children with a provision for their support, and property rights adjudicated.

Fred Bantuelle, the defendant below, appeals from the judgment entered December 10, 1945, in the 102nd District Court of Bowie County, Texas, which term expired by operation of law on October 20, 1945, unless it was properly extended. The extension order, which, omitting formal parts, reads: "On this the 19th day of October, 1945, this cause being in the process of trial, and on account of the end of this term of court being so near that it will be impractical to finish the trial on this date * * *. It is the order of the court that the present term of the 102nd Judicial District Court of Bowie County, Texas, be and the same is hereby extended until the 3rd day of December, 1945, for the purpose of fully completing the trial of this cause, and the term is so extended until that date for that purpose."

The court on December 3, 1945, entered a second order extending the term until December 17, 1945. On December 10, 1945, further testimony was heard and judgment rendered. Appellant recognizes under the provisions of Article 1923, R.C.S., the validity of the first order extending the term, but asserts the second extension entered on December 3, and all other proceedings of the court had thereafter, including the judgment, were void, because the term of court as extended by the first order expired by operation of law December 2, 1945, for the reason that the word "until" would only carry the extension to midnight of December 2d. No general rule can be laid down to determine whether the word "until" is a word of inclusion or exclusion. 52 Am.Jur. p. 351. This is readily apparent from the observation made in Engleman Land Co. v. La Blanco Agr. Co., Tex.Com.App., 239 S.W. 937, and the decisions collated in the Notes under Henderson v. Edwards, 16 A.L.R. 1090. In the latter, the writer of the text states that the numerical weight of authority holds that the word "until" is inclusive when used with respect to a stipulation or court order whereby a party to a suit is given until a specified day to file a pleading or brief, or present a bill of exception. "This ruling seems to be in accord with the popular understanding, for if one is given until a certain day to file a pleading, the average man would assume that the filing on that day would suffice." 16 A.L.R. 1095. The context of the October 19 extension order does not negative the intent that December 3d was included. The proceedings had on December 3 and the further proceedings thereafter affirmatively disclose that the court intended the use of "until" in his order of extension as a word of inclusion. To conclude, which this court does, that "until" was used in the order as a word of inclusion will be giving a liberal construction rather than a restrictive one in line with a general policy that rules of procedure be construed liberally. Engleman Land Co. v. La Blanco Agr. Co., supra; Harvey v. Provident Ins. Co., Tex. Civ.App., 150 S.W. 264; Gottlieb v. Fred W Wolf Co., 75 Md. 126, 23 A. 198.

After their marriage on January 15, 1935, and prior to their final separation, eight purchases of realty were made in the name of Fred Bantuelle, which for brevity will be referred to as the theatre building, residence thereto adjoining, Broad Street store building, the 2302 Wood Street residence, vacant lot adjacent thereto, Main Street residence, Texas Avenue residence, and Omaha, Texas, lot. The recitals in the deeds to above purchases reflect that $200 cash and assumption of the payment of a $4,000 lien note as given for the theatre building, bought December 29, 1937; (2) $500 cash and the execution of an installment vendor's lien note for $700 as given for the residence bought December 19, 1940, which adjoins the theatre building, it being recited that the $500 had been paid out of defendant's separate estate; (3) $3,500 cash as paid for the Broad Street store building, acquired February 21, 1945, it being recited that this was paid out of defendant's separate funds; (4) $5,250 cash as paid for the residence at 2302 Wood Street, bought February 3, 1942; (5) $750 cash as paid for the vacant lot acquired April 21, 1942, it being recited that this was paid out of defendant's separate funds; (6) $1,250 cash and the execution by Fred and Vidar Bantuelle of a vendor's lien note of $2,500 as given for the Main Street dwelling; (7) $1,000 cash as given for the Texas Avenue residence bought June 29, 1937; and (8) $50 cash and execution of vendor's lien note of $75 as given for the Omaha one-half acre, bought March 30, 1935.

The court, according to the findings of fact, allowed defendant his claims that the $500 and $750 above mentioned had been paid out of his separate estate, but found that the $3,500 had been paid out of community funds. And giving effect to such findings, awarded plaintiff as her part of the community realty the theatre building and the adjacent dwelling and awarded to defendant as his part of the community realty the remaining parcels except the 2302 Wood Street property which was impressed with homestead rights for his wife and children.

Points 2 to 7, inclusive, attack the sufficiency of the evidence to support that portion of the judgment which decreed above-mentioned realty to be community and the court's finding that $3,500 out of community funds were paid on the Broad Street store building.

At the time of marriage defendant owned as his separate estate a hotel and some lots in Kilgore, Texas, and several farms in Bowie County. Of and from this estate he received during marriage $15,150 from the sale of four farms, $75 monthly rental from the hotel during the period; oil royalties on a monthly average of $200 and rents from cafe, ice cream parlor, and mattress factory situated on the lots. The realty acquired during marriage yielded monthly rentals after each purchase. During the marriage defendant engaged in various business activities,...