Bates v. Bates

• Decision Date: 16 June 1954
• Docket Number: No. 5037,5037
• Citation: 270 S.W.2d 301
• Parties: BATES v. BATES.
• Court: Texas Court of Appeals

Page 301

270 S.W.2d 301

BATES v. BATES.

No. 5037.

Court of Civil Appeals of Texas, El Paso.

June 16, 1954.

Rehearing Denied July 7, 1954.

Lester C. Boone, Odessa, for appellant.

Martelle McDonald, Odessa, for appellee.

McGILL, Justice.

This was a suit by appellant as plaintiff against appellee as defendant, for divorce, in which she sought a judgment decreeing certain property to be her sole and separate property, free from all claims of appellee, and she also sought to recover $400, the proceeds of an insurance policy taken out by her on a house located on such property, such house having been destroyed by fire. Trial was to the court, without a jury. The court found that the property in question, being 68 acres of land of the Howell-Hudson Survey in Eastland County, was community property of plaintiff and the defendant, and adjudged an undivided one-half interest in and to said property to be owned by plaintiff and defendant each. The court further found that the plaintiff, Eunice Bates, had paid $390 of the purchase price of said property out of her separate estate, and awarded her a judgment as against the community property in such amount. The court further decreed that the $400 representing the proceeds of the insurance policy was the community property of the parties, and adjudged the plaintiff and defendant to be entitled to a one-half interest therein each.

The points presented by appellant are that the trial court erred in holding the 68 acres of land in Eastland County to be community property of the parties, and in holding the $400 insurance proceeds to be community property. The case was tried before the Honorable R. W. Hamilton, but he resigned before he had filed any findings of fact and conclusions of law, and such findings were filed by his successor, the Honorable William B. Deaderick. Appellee contends that these findings should not be considered because they were filed by a judge who did not try the case. He cites no authority in support of his contention, and we have found none. We think the findings should be considered. The judge who made them unquestionably had access to the stenographic record of the proceedings from which he could properly make his findings of fact. We shall therefore consider such findings. The third finding of fact is that the 68 acres in controversy was purchased out of community funds and is community property, and (4) that title to such property was taken in the name of plaintiff, Eunice Bates, who held the same for the use and benefit of the community existing between her and James D. Bates, and (5) that the community funds and separate funds of the parties were so commingled that all of the property was community property with the exception of $300 which was paid by the plaintiff's son, and the court concluded that the land in controversy was the community property, to be held jointly by the parties.

The deed to the 68 acres was executed by a number of grantors for a recited consideration of $1,360, of which $760 was paid in cash by Eunice Bates and $600 was evidenced by a vendor's lien note payable to Commercial State Bank, Ranger, Texas, and signed by Eunice Bates and her husband, James D. Bates...