Evans v. Evans, 11484.

• Decision Date: 28 February 1945
• Docket Number: No. 11484.,11484.
• Citation: 186 S.W.2d 277
• Parties: EVANS v. EVANS.
• Court: Texas Court of Appeals

186 S.W.2d 277

EVANS v. EVANS.

No. 11484.

Court of Civil Appeals of Texas. San Antonio.

February 28, 1945.

Rehearing Denied March 21, 1945.

Appeal from District Court, Thirty-Seventh District, Bexar County; John F. Onion, Judge.

Suit for divorce by James J. Evans against Henrietta Lund Evans. From a decree in favor of plaintiff, defendant appeals.

Decree reversed and cause remanded for further proceedings not inconsistent with opinion.

Eskridge & Groce and Walter Groce, all of San Antonio, for appellant.

Claud J. Carter, of San Antonio, for appellee.

NORVELL, Justice.

This is a divorce case. The decree was in favor of the husband, James J. Evans, and against the wife, Henrietta Lund Evans.

Mrs. Evans, as appellant, contends that the trial court erred in sustaining a special exception to her application for a stay of proceedings in the present case.

This matter was heard and passed upon by one of the district judges of Bexar County prior to a trial upon the merits which was heard by another judge. The pertinent pleadings were the plaintiff's original petition, the application for a stay of proceedings, and the exception directed against said application.

The petition is predicated upon Article 4629, Section 1, Vernon's Ann.Civ.Stats.— the "cruel treatment" section of our divorce statutes. It appears inferentially from the material pleadings that the parties to this suit both lived in Ohio prior to the time the husband removed to Texas, and that all the actions and occurrences relied upon by him as grounds for divorce took place in the State of Ohio, which was the matrimonial domicile of the parties. It appears that two children were born to the marriage, and that these children, aged seven and five, respectively, as well as appellant, now reside in Ohio.

Appellant's First Amended Original Answer contained the following special plea:

"She renews her plea in abatement heretofore filed and for such plea says that on November 28, 1942, plaintiff in this cause filed suit against her in the Court of Common Pleas of Cuyahoga County, State of Ohio, a court having jurisdiction in said state to grant decrees of divorce, together with ancillary relief in connection therewith. That summons was issued on such petition on the same date and was served on the defendants in this cause on the 30th day of November, 1942. That this defendant filed her motion for alimony pendente lite, and the plaintiff in this cause, as plaintiff in said cause pending in the Court of Common Pleas in the County of Cuyahoga, State of Ohio, filed his reply thereto on December 11, 1942. That a recommendation of the Domestic Relations Department for alimony at the rate of $60.00 per month was made, and on objections by defendant, was raised to $75.00 per month; and a motion was then made by the plaintiff to reduce the alimony from $75.00 per month to $50.00 per month. That the defendant in said cause, who is also the defendant in this cause, filed her cross action against the plaintiff for separation, custody of their two minor children, temporary and permanent alimony and general relief on the 2nd day of December, 1942, and summons was issued and served on the plaintiff on the 9th day of December, 1942. That said order for alimony has never been set aside, and said suit and cross action are still pending in the Court of Common Pleas for said county and state.

"Wherefore, this defendant says that this suit should be abated and await the outcome of the trial of said suit pending in the County of Cuyahoga, State of Ohio."

Appellee specially excepted to this special plea "for the reason that if said suit is pending as alleged, such pendency of said suit is no ground for the abatement of plaintiff's suit in this Court and constitutes no defense whatsoever against this suit."

The trial court sustained the exception, apparently upon the theory that appellant's special plea was strictly speaking a plea in abatement. While appellant's application did make use of the term "plea in abatement," and thus introduced a confusing element into the case, we think it reasonably clear that appellant's special plea was one for a stay of...