Byrne v. Byrne

• Decision Date: 31 December 1848
• Parties: ANN BYRNE, Plaintiff in Error, v. WILLIAM C. BYRNE, Defendant in Error
• Court: Texas Supreme Court

3 Tex. 336

ANN BYRNE, Plaintiff in Error,

v.WILLIAM C. BYRNE, Defendant in Error

Supreme Court of Texas.

December Term, 1848.

Writ of Error from Galveston County.

The grounds on which a decree of divorce is sought should be clearly and explicity alleged in the petition, and the proof must fully sustain such allegations. It is not sufficient that a jury has found that outrages have been committed of such a nature as to render their living together insupportable. What is meant in our statute by “ insupportable” and “ outrageous” is a question of law. The existence and truth of the facts that amount to such outrages are for the jury to find.

When a divorce is decreed, it is a dissolution of the marital rights in relation to the community property, and the wife is entitled to her share of such property, and to her own separate property, if any she has.

From the transcript in this cause, it appears that William C. Byrne filed his petition against Ann Byrne, his wife, on February 24, 1847, alleging his marriage with the defendant in 1839; that they were the parents of two infant children; that the defendant conspired, with others, against his life by poisoning him; that while out of his right mind, she procured, or caused him to execute, two certain deeds of conveyance, a copy of only one of which is found in the transcript, the other having been permitted to be withdrawn; that the defendant committed adultery with one Thomas Sherlock; and after more fully describing the deeds, proceeds to impeach the consideration of the one to James P. Nash, and concludes by a prayer for a divorce, a vinculo matrimonii, and that the deeds be vacated and annulled.

The answer, filed on May 11, 1847, consists of a general denial, followed by a special denial of all the material allegations of the petition, and concludes, substantially, as a cross bill. Two amendments to the answer were subsequently filed, and also a motion on the part of the defendant. After a motion for a new trial, the court made its decree. The decree, after reciting that certain motions on the part of the defendant, as well as certain demurrers on the same side, were overruled, and that there was a verdict of a jury (which does not appear elsewhere in the record), proceeds to divorce the parties a vinculo matrimonii; to make a disposition of each of the children; to vacate one of the deeds; to create a lien for the maintenance of the daughter upon the property embraced in one of the deeds vacated; to order that each of the parties should pay their respective costs, and to give leave that the deed to Nash should be withdrawn from among the papers. Upon this decree a writ of error was sued out.

ALEXANDER for plaintiff in error.

As the petitioner sought to effect two distinct objects by his suit, to vacate two certain deeds, and to obtain a divorce, the petition is multifarious. It contains a misjoinder of two distinct and incompatible causes of action. [[[Story's Eq. Pl. secs. 530 (note 1), 271, 278 and 538.] It can never be permitted that distinct matters should be united in the same record. [[[[Salvidge vs. Hyde, 1 Jac. R. 141, and 5 Madd. 138; Mitford's Eq. Pl. (by Jeremy), 181, 182.] The infant children should have had a guardian ad litem appointed for them by the court, and ought to have been made parties defendant to the suit, as it sought to vacate, and indeed vacated, a deed to them. They had an “interest in the object of the suit.” [Story's Eq. Pl. sec. 72.] Nash should have also been made a defendant. “A court will never undertake to adjudicate the rights of parties who are not before it.” [5th Statutes, 84, sec. 10; Toler & Crosby vs. Ayres, 1 Texas Rep. 398.] The irregularities in the record are sufficient to entitle the case to be reversed and dismissed. The decree alone on its face is replete with error. Even if the court could entertain a petition for the vacation of two distinct deeds to different parties, not before the court, nor attempted to be brought before it by the petitioner, and for a divorce, it could not, without appointing a guardian ad litem, vacate a deed to infants, and without a prayer to that end, and without the appointment of a commissioner, “create a lien” upon the property embraced in the deed for the maintenance of one of them. Nor could it make any order touching the estate of the petitioner, without decreeing alimony to the wife. At all events, the community property of the husband and wife should have been divided. The husband might dispose of it only “during the coverture” of the wife [4th Stat. p. 4, sec. 4], which may be terminated either by death or by divorce.

GILLESPIE and HANCOCK for defendant in error.

The facts fully warrant the finding of the jury in their conclusion that the complainant was entitled to a divorce as prayed.

The motion made by the defendant below, to have a guardian ad litem appointed for the infant children, it is not deemed necessary to consider. It was the duty of the judge to make suitable provision for them during their minority. This was left solely to his discretion under the circumstances of the case, which discretion, it is presumed, he properly exercised. Further than this, they had no interest in the matters pending before the court.

The demurrer and plea of multifariousness, having doubtless the same object in view, are thought equally untenable. The manner of obtaining the deed to the property, and the circumstances attending the whole transaction, constituted one of the principal grounds of the complaint brought to the consideration of the court. It was a matter necessary to be inquired into. When it appears that a subject must, of necessity, be minutely and critically investigated, it would seem strange...