Darsey v. Darsey, 11798.
| Decision Date | 25 July 1946 |
| Docket Number | No. 11798.,11798. |
| Citation | 196 S.W.2d 524 |
| Parties | DARSEY v. DARSEY. |
| Court | Texas Court of Appeals |
Appeal from District Court, Harris County; Ewing Boyd, Judge.
Divorce suit by Vera Mae Darsey against Dan Dale Darsey. From a judgment for the plaintiff, the defendant appeals.
Affirmed.
J. Farris Fish, of Matador, for appellant.
Dawson & Hatten and Alvin R. Dawson, all of Houston, for appellee.
This suit was instituted by appellee, Vera Mae Darsey, for divorce from appellant, Dan Dale Darsey, upon allegations of cruel treatment and outrages towards her of such a nature as to render their further living together insupportable, and for custody and support of their minor child. The suit was filed in the district court of Harris County on January 10, 1946, two days after appellant had filed a suit for divorce against appellee in the district court of Motley County.
On February 4, 1946, appellant filed a plea in abatement of this suit, alleging the pendency of and prior filing of his suit for divorce against appellee in Motley County. Appellee filed an answer to said plea in abatement, alleging that appellant had fraudulently induced her to postpone the filing of a divorce suit against him for the purpose of enabling him to file his suit.
On the trial of the case before the court without a jury, with all parties present in person and by attorneys, judgment was rendered overruling said plea in abatement and granting the appellee a divorce from the appellant. The custody of their minor child was awarded to appellee and appellant was ordered to pay the sum of $30 per month for the support and maintenance of the child. No findings of fact or conclusions of law were requested by the parties or filed by the trial court.
Appellant bases his appeal upon three main points: (1) That the court erred in overruling his plea in abatement, based upon the fact that another and prior suit involving the same parties and the same subject matter was pending in the district court of Motley County; (2) that the evidence introduced by appellee was insufficient to show that appellee had resided in Harris County for a period of six months next preceding the filing of the suit; and (3) that the evidence introduced by appellees shows that appellant had not been guilty of any excesses, cruel treatment or outrages toward appellee since she had last lived with him as his wife, and that she had condoned the acts alleged as grounds for divorce.
It is the general rule in this state that the fact that a suit is pending in another county when a second suit involving the same parties and subject matter is brought does not automatically deprive the court of jurisdiction of the second suit, where it is established by proof that the plaintiff in the first suit filed, knowing that the defendant therein contemplates the bringing of a suit in another county, fraudulently induces him to postpone the filing of his suit in order that he may take advantage of the delay, thus fraudulently obtained, to forestall the plaintiff's contemplated suit by another suit in a different county. Mitchell v. Allis-Chalmers Mfg. Co., Tex.Com.App., 291 S.W. 1099; V. D. Anderson Co. et al. v. Young, Judge, et al., 128 Tex. 631, 101 S.W.2d 798.
In the instant case appellee alleged in her answer controverting appellant's plea in abatement that she had contemplated filing suit for divorce, but that appellant had prevailed upon her to enter into an agreement with him that neither of them would file suit for divorce until their child, who was at that time approximately one year of age, was six years of age. The trial court entered his order overruling said plea in abatement after a full hearing at which appellee testified fully as to the facts alleged.
It is the settled law in this state that where the record in a non-jury trial includes a statement of facts but no findings of fact by the trial court, the reviewing court must assume that every fact alleged and necessary to support the judgment rendered was found by the trial court, if supported by any evidence. Kinney v. Johnson,...
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