Ex Parte Scott
| Citation | 123 S.W.2d 306 |
| Decision Date | 04 January 1939 |
| Docket Number | No. 7456.,No. 7377.,No. 13625.,7377.,7456.,13625. |
| Parties | Ex parte SCOTT. SCOTT et al. v. SCOTT. SCOTT v. BOND et al. |
| Court | Supreme Court of Texas |
Hamilton, Harrell, Hamilton & Turner and Cantey, Hanger, McMahon, McKnight & Johnson, all of Dallas, for relator.
Thompson, Knight, Baker, Harris & Wright, of Dallas, and Marvin B. Simpson, Robert Harrison, and Harris Brewster, all of Fort Worth, for respondents and appellees.
As indicated by the above captions, this opinion will dispose of what in fact are three separate proceedings in this Court. All, however, grow out of a divorce suit pending in the District Court of Dallas County, Texas. Because the three cases are related to a certain extent with each other, and were submitted and argued together in this Court, we will dispose of them all in this opinion. We will later divide the opinion into three sections, one for each case.
The three parties involved in this opinion, excluding the justices of the Court of Civil Appeals at Dallas, are Mrs. Jessica Scott, Winfield Scott, Jr., alleged husband of Mrs. Jessica Scott, and Mrs. Elizabeth Scott, the mother of Winfield Scott, Jr. For convenience, we shall hereafter refer to Mrs. Jessica Scott as the wife, to Winfield Scott, Jr., as the husband, and to Mrs. Elizabeth Scott as the mother.
On November 12, 1937, the wife, while a resident of Dallas County, Texas, filed suit for divorce in the 44th District Court of that county against the husband, alleged to be a resident of Tarrant County, Texas. The mother, also alleged to be a resident of Tarrant County, Texas, was made a party defendant to such suit, for purposes we will later detail.
The wife's petition in the district court in substance prays for the following relief against the husband: For service; for divorce; for order requiring the husband to file proper inventories; for partition and division of property; for alimony pending the divorce proceedings; for attorney's fees; and for costs.
The wife's petition alleges grounds for a divorce from the husband, and then alleges that in 1925, some six years before she was married to the husband, the husband made a deed to the mother, purporting to convey to her numerous tracts of land in Tarrant, Johnson, and Parker counties, Texas. It is alleged that such deed did not in truth convey the actual title to the mother, but was, and is, merely a pretended and simulated conveyance. It is then alleged that the mother undertook to hold the properties included in such deed, not for herself, but merely as trustee for the husband, who is still the real owner thereof. The petition in effect attempts to allege that the mother is merely the owner of the legal title to the lands included in the above-mentioned deed, but that the husband is still the owner of the real title to such lands, and is entitled to have same reconveyed to him by the mother. The petition then prays that the mother be decreed to be the trustee for the husband, and as holding the lands included in the above deed merely as trustee for him. Also, the petition prays that the court appoint a trustee, with full power to collect the rents, revenues, and income arising out of the properties included in such deed, and with the moneys so derived build the wife a home. Also, the petition prays that the court fix such other charges on such properties, in favor of the wife, as to the court may seem proper, for her use and benefit during her lifetime. It will readily be seen that the mother is made party to the divorce action in an attempt to have the Dallas County District Court adjudge that she is not the real owner of the properties or lands included in the deed from the husband to her.
After the filing of the above suit, and after service had been had on him, the husband filed his plea of privilege to be sued in the District Court of Tarrant County, Texas. This plea was in statutory form, and was filed on December 11, 1937.
After the filing of the above suit, and after service had been had on her, the mother filed her plea of privilege to be sued in Tarrant County, Texas. This plea was in statutory form, and was filed on the same day as that of the husband.
On December 28, 1937, the wife filed a controverting affidavit to the husband's plea of privilege. Also, on December 17, 1937, the wife filed a controverting affidavit to the mother's plea of privilege. For the purposes of this opinion we will assume that these controverting affidavits were sufficient to present all questions ruled on by the trial court.
On January 17, 1938, the District Court of Dallas County heard the plea of privilege filed by the husband, together with the wife's controverting affidavit thereto, and overruled such plea; to which action of the court the husband duly excepted and gave notice of appeal to the Court of Civil Appeals.
On the date last mentioned, January 17, 1938, the district court also heard the plea of privilege filed by the mother, together with the wife's controverting affidavit thereto, and also overruled such plea; to which action of the court the mother duly excepted and gave notice of appeal to the Court of Civil Appeals.
Both of the above-named appellants duly perfected their appeals to the Court of Civil Appeals. We will later in this opinion discuss and dispose of the questions pending in this Court regarding the same.
In this connection, we will note that the husband and the mother filed their appeal bonds on January 18, 1938, and the transcript was filed in the Court of Civil Appeals on January 19, 1938.
After the happening of the above events, the district court made an alimony order requiring the husband to pay the wife the sum of $480 per month, in semi-monthly installments of $240 each, pending the final disposition of the divorce action. The husband failed to pay the alimony as ordered, and on February 3, 1938, the district court held the husband in contempt for his failure to obey such alimony order, and fined him $100 and committed him to jail for three days, and until he should purge himself of such contempt by paying the sum of money past due under such alimony order. The husband was duly committed to jail under the above contempt order. This Court then granted the husband a writ of habeas corpus, and ordered him released on giving bond in the sum of $5,000. The bond was given, and the husband is now at large, pending the decision of this Court on such matter.
Habeas Corpus Proceeding.
It is a statutory law of this State that the district court before which a divorce suit is pending has power and jurisdiction to enter an alimony order in favor of the wife, and against the husband, pending final disposition of the divorce proceeding. Art. 4637, R.C.S. 1925.
It is the settled law of this State that under the above statute the district court has power and jurisdiction, not only to make an alimony order in favor of the wife and against the husband, but it has the further power and jurisdiction to enforce such order by proper contempt proceedings; and such power and jurisdiction exist even though at the time such alimony order or contempt proceedings be had the judgment in the divorce proceeding is pending on appeal in the Court of Civil Appeals. Ex parte Hodges, 130 Tex. 280, 109 S.W. 2d 964.
Where a husband has been committed to jail by contempt order of the district court, for disobeying an alimony order, the original habeas corpus proceedings in the Supreme Court brought by the husband for relief from commitment to jail is a collateral attack on the district court's contempt order, and must fail, unless such contempt order is utterly and absolutely void. Ex parte Hodges, supra.
It is the law of this State that in an ordinary civil suit an appeal from an order overruling a plea of privilege does not suspend the power of the trial court to proceed to try the case on its merits. Martin v. McKean & McNeal, Tex.Com.App., 257 S.W. 241. This being the rule, and it also being the rule that an alimony order can be made and enforced while the main divorce case is on appeal, it certainly cannot be said that the district court before which a divorce suit is pending is without jurisdiction to make and enforce an alimony order against the husband after such court has overruled the husband's plea of privilege. It follows that the alimony order and the contempt order here involved were neither of them void because made after a plea of privilege had been filed by the husband and overruled by the court. Furthermore, the fact that an appeal had been perfected to the Court of Civil Appeals at the time the alimony order was entered, and at the time the contempt hearing was had and contempt order entered, did not, and does not, affect the validity of such order. Ex parte Hodges, supra.
It is contended that the case of Shell Petroleum Corporation v. Grays, 122 Tex. 491, 62 S.W.2d 113,...
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