Day v. Day, 2031.
| Decision Date | 26 June 1940 |
| Docket Number | No. 2031.,2031. |
| Parties | DAY v. DAY. |
| Court | Texas Court of Appeals |
Appeal from District Court, Eighty-Eighth District, Eastland County; B. W. Patterson, Judge.
Suit for divorce by Sam J. Day against Rose Winkler Day. From a judgment granting plaintiff a divorce and awarding certain money to the defendant, the defendant appeals.
Affirmed.
W. D. R. Owen, of Eastland, and John C. Hoyo, of San Antonio, for appellant.
M. E. Lawrence, of Eastland, for appellee.
On March 8, 1938, judgment was rendered in this cause granting Sam J. Day a divorce from Rose Winkler Day. That judgment was based upon citation by publication. The court appointed an attorney to represent said defendant so cited. He filed an answer consisting of a general demurrer and a general denial. In less than two years after the rendition of said judgment defendant filed her motion for a new trial, or bill of review, as authorized by Art. 2236, R.S.1936. On the 9th day of June, 1939, a new trial was granted and the divorce case was re-tried. Judgment was rendered granting plaintiff a divorce and awarding certain money to defendant. The defendant has appealed.
On June 9, 1939, defendant filed a pleading denominated a trial amendment, consisting of exceptions (which defendant refers to in her brief as general exceptions) to the effect that plaintiff's allegations of cruel treatment consisted of mere conclusions of the pleader. Prior thereto, in her motion for a new trial, or bill of review, defendant had expressly adopted the pleading theretofore filed, at the former trial of the divorce suit, by the attorney appointed by the court to represent her, consisting of a general demurrer and a general denial. Said general demurrer (contained in her answer filed at the first trial) and said exceptions (filed by attorneys of defendant's own selection at the time of the hearing of defendant's motion for new trial and second trial of the divorce case) were presented to and overruled by the court, and such action is assigned as error.
Article 2006, R.S.1925, provides, in substance, that a defendant may plead as many matters of law or fact pertinent to the cause as he may consider necessary for his defense, "provided, that he shall file them all at the same time and in due order of pleading." It is obvious that the exceptions were not filed at the same time as the general demurrer and general denial but were filed subsequent thereto and not in due order of pleading.
Under the situation disclosed defendant by first filing an answer to the merits of plaintiff's petition waived the right to thereafter present such exceptions to the petition. District & County Court Rules 6 and 7, 142 S.W. xvii; Bennett v. Ross, Tex.Civ.App., 278 S.W. 314, 315; Camden Fire Ins. Ass'n v. Clark, Tex.Civ. App., 69 S.W.2d 463, writ dismissed; Drake v. Brander, 8 Tex. 351; Towner v. Sayre, 4 Tex. 28; Smoot's Texas Court Rules, 357, 360 and 362; 33 Tex.Jur. 559 & 525 et seq.; Arts. 2006 and 2012, R.S.1925; Townes' Texas Pleadings (2d Ed.) 529; Howard's Unknown Heirs v. Skolant, Tex. Civ.App., 162 S.W. 978; Hutchison v. First Nat. Bank, Tex.Civ.App., 67 S.W.2d 1052; Dickson v. Scharff, Tex.Civ.App., 142 S.W. 980, 981.
The question remains whether or not the petition was subject to a general demurrer.
Article 4629, R.S.1925, states one ground for divorce as follows: Plaintiff attempted to allege facts applicable to said statutory provision. He alleged that immediately after the marriage defendant began a course of improper and harsh treatment toward him; that she immediately began to call him vile and vulgar names and insulted him repeatedly, because she learned he was not as well fixed financially as she thought at the time of the marriage; that her religious belief was contrary to plaintiff's; that defendant informed the public she was not married to him, because the marriage vows were not solemnized according to the rules of her church, and said church would not solemnize their marriage because plaintiff had other children by a former marriage. That defendant's actions and conduct toward him generally, both in public and in private, were of such nature as to render their further living together insupportable. He alleged that by reason of said treatment he was forced to abandon defendant four days after they were...
To continue reading
Request your trial
-
Ellis v. Ellis
...S.W.2d 269; Black v. Black, Tex.Civ.App., Waco, 185 S.W.2d 476; Bell v. Bell, Tex.Civ.App., Eastland, 135 S.W.2d 546; Day v. Day, Tex.Civ.App., Eastland, 142 S.W.2d 394. While corroboration is not deemed necessary as a matter of law to meet the full and satisfactory evidence rule, it is a m......
-
Mayen v. Mayen, 4350.
...278 S.W. 288; Cooksey v. Cooksey, Tex. Civ.App., 40 S.W.2d 947; Lowery v. Lowery, Tex.Civ.App., 136 S.W.2d 269; Day v. Day, Tex.Civ.App., 142 S.W.2d 394. In the case here we have practically the uncorroborated testimony of appellee, contradicted by the uncorroborated testimony of appellant.......
-
Mortensen v. Mortensen, 11475.
...App., 278 S.W. 288; Cooksey v. Cooksey, Tex.Civ.App., 40 S.W.2d 947; Lowery v. Lowery, Tex.Civ.App., 136 S.W.2d 269; Day v. Day, Tex.Civ.App., 142 S.W.2d 394." See also: Speer's Law of Marital Rights in Texas, p. 763, Sec. Under the authorities and the trial court's findings, we must hold t......
-
Hodges v. Hodges, 14907.
...97 S.W.2d 1023; Caywood v. Caywood, Tex.Civ.App., 290 S.W. 889; Buckner v. Buckner, Tex.Civ.App., 27 S.W. 2d 311; Day v. Day, Tex.Civ.App., 142 S.W.2d 394. It has been held that the appellate court as well as the trial court must be satisfied that the evidence is full and satisfactory. Yosk......