Christie v. Tipps, 3176
| Decision Date | 29 April 1955 |
| Docket Number | No. 3176,3176 |
| Citation | 279 S.W.2d 142 |
| Parties | Jack Richard CHRISTIE, Relator, v. Hon. Arthur TIPPS et al., Respondents. |
| Court | Texas Court of Appeals |
J. G. Harrell, Hawkins & Dean, Breckenridge, for appellant.
Jack Richard Christie, relator, by this original proceeding, seeks the issuance of a writ of mandamus to require the Honorable Arthur Tipps, the presiding judge, to render and enter judgment on the verdict of the jury in a cause styled Anna Ruth Christie v. Jack Richard Christie, pending in the District Court of Stephens County, Texas.
The suit was brought by Anna Ruth Christie against her husband, Jack Richard Christie, for divorce on the ground of cruel treatment. She alleged and prayed a finding of the court that certain oil and gas leases referred to as the Jeter A. and B leases in Shackelford County, Texas, were community property; that such property was acquired by the parties after their marriage with common funds by purchase from F. J. Christie, father of her husband, and not by either of them by gift, devise or descent; that the defendant had at all times represented to the plaintiff that such leases were acquired by purchase for a consideration of $20,000; that prior to the filing and recording of the assignment of said leases, defendant and his father placed on said instruments United States Internal Revenue Stamps in the amount of $22 which indicated and represented a consideration of $20,000. She alleged, in an alternative plea, that if mistaken in her allegation that said leases were acquired by purchase, said leases were assigned by F. J. Christie to the plaintiff and defendant or to the defendant, Jack Richard Christie, as a joint and community gift.
The case was tried before a jury which, after deliberation announced in open court that a verdict had been reached. The court, upon examination of the verdict, found that the jury had made the following answers to special issues No. 3 and No. 6:
The court was of the opinion that the answers to special issues No. 3 and No. 6 were in conflict and in a written instruction so advised the jury. The jury was instructed that the court could not accept the verdict as presented; that they should further consider their answers to the issues in an effort to reconcile the conflict. The jury retired for further deliberation and again returned into open court and announced that they were unable to reconcile the conflict. The court thereupon announced that the verdict would be received for whatever it was worth. Such verdict, signed by the foreman of the jury, was at that time, on September 20, 1954, returned and filed by the clerk and the jury was discharged.
Jack Richard Christie made a motion for judgment on the verdict. He urged that the answer to special issue No. 3 should be disregarded and judgment rendered for him on the remaining findings of the jury, particularly the finding in answer to special issue No. 6 to the effect that the leases in question were conveyed to him as a gift from his father, F. J. Christie. An order was entered decreeing that the motion for judgment on the verdict and notwithstanding the answers to special issue No. 3 be overruled and that the verdict of the jury be set aside on account of the conflict and that the case stand on the docket for another trial. Jack Richard Christie then drought this original proceeding for mandamus to require the rendition and entry of judgment in his favor.
This is a dovorce suit. The power of the court to determine the property rights of the parties depends upon the granting of a divorce. 15 Tex.Jur. 582. Relator, in urging this mandamus for a judgment that the property in question is his separate property is, therefore, also in the position of requesting that the trial court be required to enter judgment for his wife and against him for a divorce. We question Relator's right to a writ of mandamus to require the rendition of a judgment against him on the divorce action, which in this case is a prerequisite to the power of the trial court to enter any judgment determining the property rights of the parties. We do not pass on the matter, however, because we are of the opinion that the court correctly found that there was a material conflict between the findings in special issue No. 3 and special issue No. 6, and that no judgment could be rendered on either.
Relator contends that the answer to special issue No. 3 to the effect that the Jeter A and B leases are community property constitutes a general finding which cannot stand against the specific finding in answer to special issue No. 6 that the assignment of the leases by F. J. Christie was a gift to Jack Richard Christie. In our opinion, the answer to special issue No. 3 is not the type of general finding which may be disregarded when it is in conflict with a specific finding of fact. The case of Brewster v. City of Forney, Tex.Com.App., 223 S.W. 175, 177, demonstrates the controlling consideration in such cases. In that case the jury found specific facts showing that the construction and operation of a sewerage system was a case, supra, said substantially that where to the effect that the jury did not believe the construction and operation of the plant constituted a nuisance. The court, in holding that the latter finding should be ignored, stated that 'It was not a finding of fact, but an expression of opinion on the legal effect of the facts found' and noted that the definition of nuisance given by the trial court was too narrow and did not meet the necessities of the situation. In the instant case community property and separate property were defined in the court's charge as follows:
'You are instructed that...
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