Burger v. Burger
| Decision Date | 30 January 1957 |
| Docket Number | No. A-6033,A-6033 |
| Citation | 298 S.W.2d 119,156 Tex. 584 |
| Parties | Lawrence L. BURGER, Petitioner, v. Elsa BURGER, Respondent. |
| Court | Texas Supreme Court |
Lawrence L. Burger, pro se.
Jules F. Mayer, Elihu E. Berwald, Dallas, for respondent.
On June 22, 1953, Elsa Burger, respondent, was granted a divorce from Lawrence L. Burger, petitioner, by a Dallas County District Court, and was awarded custody of their three minor children. The trial court further adjudged that defendant pay into the court's registry each month $300, to be paid to plaintiff as his contribution to the support and maintenance of the children. At the time of divorce both plaintiff and defendant resided in Dallas, Texas, but after the divorce was granted defendant moved to Florida, which became and is the place of residence of each.
On June 17, 1955, Elsa Burger, describing herself as plaintiff herein, filed in the divorce case what she styled her 'Motion to Reduce Child Support Arrearage' to judgment against defendant. She alleged that defendant Burger was at the date of filing the motion behind $5,315 in the child support payments ordered in the divorce judgment above described, wherefore she was entitled to a money judgment for that sum. She prayed for proper notice to defendant to show cause why she should not be allowed such judgment. This notice was issued and was duly served by a sheriff in Florida on June 21, 1955.
On July 8, 1955, the Honorable H. Louis Nichols, of the Dallas Bar, describing himself as 'Amicus Curiae', filed what he called a 'Suggestion of Want of Jurisdiction'. His position was that the court had no jurisdiction to reduce the amount owed for child support to a final judgment for a fixed sum, 'in that Article 4639a of Vernon's Revised Civil Statutes does not authorize' the relief because defendant is a resident of Florida and beyond the jurisdiction of a Texas court. This 'Suggestion' was filed with the consent of the trial court.
The first question to be determined is whether the 'Suggestion' filed by Mr. Nichols was merely as an amicus curiae, as he contends, or constituted an appearance by petitioner for all purposes having to do with the suit. Under the facts of this case it would indeed be unreal to say that Mr. Nichols was merely an amicus curiae. Mr. Nichols testified that when Burger got the notice to serve non-resident he mailed it to a member of Mr. Nichols' firm with a check for $100, and asked 'what could be done since he had not been served, in order to bring to the attention of the court that he was served in Florida.' Mr. Nichols was then asked: 'Did he pay a fee of any kind for this attention to the case by your office?' To this Mr. Nichols replied: 'He has sent Mr. Sallinger a check for-for $100.00, and I do not know exactly what it covers.' It is interesting to note here that both the motion for rehearing in the Court of Civil Appeals and the application for writ of error here are indorsed as filed by 'Lawrence L. Burger Amicus Curiae Substituting for H. Louis Nichols.'
A true amicus curiae is without interest in the litigation in which he appears. He is a 'bystander' whose mission is to aid the court, to act only for the personal benefit of the court. There are many authorities, but we deem it adequate to cite only a few. See Thomas v. Driver, Tex.Civ.App., 55 S.W.2d 187; Broome v. Smith, Tex.Civ.App., 265 S.W.2d 897; Walker County Lbr. Co. v. Edmonds, Tex.Civ.App., 298 S.W. 610; Jackson v. Birk, Tex.Civ App., 84 S.W.2d 332; Olcott v. Reese, Tex.Civ.App., 291 S.W. 261, and The State of Texas v. Jefferson Iron Co., 60 Tex. 312; Amer.Jur., Vol. 2, p. 679, sec. 2.
It is said that a special appearance is unknown to our practice; that the filing by a defendant of any defensive pleading, though it be only for the purpose of challenging the jurisdiction of the court, constitutes an appearance and a submission to the jurisdiction of the court for all purposes. Waco Hilton Hotel Co. v. Waco Development Co., Tex.Civ.App., 75 S.W.2d 968, error dismissed. Here the suggestion was...
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Catlett v. Catlett, 40887
...v. Freeland, Tex.Civ.App., 313 S.W.2d 943. Texas courts cannot reduce child support arrearages to lump sum judgment, Burger v. Burger, 156 Tex. 584, 298 S.W.2d 119; they cannot be enforced by garnishment or execution, McDonald v. Mercantile National Bank, Tex.Civ.App., 162 S.W.2d 991; Clay ......
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Huff v. Huff
...of the Texas Family Code, an order of child support could not be judicially enforced as other final judgments. See Burger v. Burger, 156 Tex. 584, 298 S.W.2d 119 (1957). Contempt had been the only remedy available to collect unpaid child support. 2 Section 14.09 now provides two separate re......
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Ex parte Hooks, A--11688
...40 S.W.2d 46, 75 A.L.R. 1305 (1931). A contempt proceeding is the only means of enforcement of a valid support order. Burger v. Burger, 156 Tex. 584, 298 S.W.2d 119 (1957). There is no power to enforce a support judgment by execution, Ex parte Birkhead, 127 Tex. 556, 95 S.W.2d 953 (1936), n......
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Simmonds v. TDCJ, No. 10-07-00361-CV (Tex. App. 2/24/2010)
...88 L.Ed.2d 662 (1986). 12. "A true amicus curiae is without interest in the proceeding in which he appears. Burger v. Burger, 156 Tex. 584, 298 S.W.2d 119, 120-21 (Tex. 1957). He is a `bystander' whose mission is to aid the court to act only for the personal benefit of the court. Id." In re......