Ferguson v. Ferguson
| Decision Date | 05 October 1960 |
| Docket Number | No. A-7557,A-7557 |
| Parties | Lillian Annelle FERGUSON, Petitioner, v. L. A. FERGUSON et al., Respondents. |
| Court | Texas Supreme Court |
Jennings & Montgomery, Graham, for petitioner.
John W. Moore, Jacksboro, for respondent.
This suit grew out of a dispute between the petitioner and respondents as to the ownership of profit and assets of a livestock trading business. Petitioner Lillian Annelle Ferguson filed suit for divorce against her husband, L. A. Ferguson, one of the respondents, on January 11, 1958. It developed during the pendency of the divorce suit that on about January 21, 1958, L. A. Ferguson began a cattle trading operation with community funds or funds borrowed on community credit in the name of L. L. Ferguson, his son by a former marriage. These operations were begun and continued while temporary injunction designed to prevent the concealing or secreting of community property was in force. During the trial of the divorce suit it developed that respondent L. L. Ferguson was claiming ownership of the entire livestock trading business by virtue of an oral inter vivos conveyance from L. A. Ferguson to L. L. Ferguson made on or about March 5, 1958. L. A. Ferguson disclaimed as to any interest in the property. Decision on the status of ownership of this property would have required the joinder of L. L. Ferguson, a third party to the relationship of husband and wife, as a necessary party to the divorce proceedings. While the trial court could have made L. L. Ferguson a party to the original suit under Rule 39(b) Texas Rules of Civil Procedure, and afforded complete relief, upon motion of petitioner the issue forming the basis of the present trial was severed from the divorce suit pursuant to Rule 174(b) T.R.C.P. Judgment was then entered granting petitioner a divorce and adjudicating the property rights of the parties. Said judgment, however, provided that same would not be a bar to any action taken by petitioner to recover the profits and assets, if any, of the livestock trading business.
The divorce judgment was entered on July 24, 1958, and on August 19, 1958, petitioner brought this suit to set aside the purported oral conveyance from respondent L. A. Ferguson to respondent L. L. Ferguson, requesting that they be required to account to her for '1/2 of the profits of the operation commenced and carried on by defendant (respondent here) L. A. Ferguson under the name of L. L. Ferguson (respondent here); that the remaining assets of such operation be partitioned between the plaintiff (petitioner here) and defendant L. A. Ferguson.' Respondents answered by general denial. Trial was had to a jury and the judgment of the trial court recites that the court:
'* * * is of the opinion that judgment should be entered and rendered as follows for the defendnat:
'It Is Accordingly Ordered, Adjudged and Decreed by the court on this the 15th day of October, 1958, that the defendants, L. A. Ferguson and L. L. Ferguson, furnish to plaintiff an accounting of the profits of the trading of any cattle and livestock, if any, between January 21st and March 5, 1958, and to further account to the plaintiff the profits, if any, on the 47 head of steers on hand and in possession of these defendants on March 5, 1958, and to pay plaintiff one-half of the net profits from the purchase and sale of said livestock.
'It Is Further Ordered, Adjudged and Decreed, that the plaintiff take nothing by this suit other than the relief hereinabove granted, and that she in all things be denied any relief sought by this suit.
'It Is Further Ordered, Adjudged and Decreed, that the cost in this lawsuit shall be borne equally between plaintiff and defendants for which the officers of the court shall have their execution.'
(1) This suit having been construed as an action involving the division of community property upon divorce, the question of jurisdiction of this court is raised. This court has jurisdiction because the property rights of L. L. Ferguson, a third party, to be adjudicated herein, are not dependent upon the granting or denial of a divorce, but could be adjudicated in a suit in which no divorce decree is sought. Korn v. Korn, Tex.Com.App., 29 S.W.2d 1075; Bearden v. Knight, 149 Tex. 108, 228 S.W.2d 837.
Petitioner predicates her application for writ of error upon the proposition that the Court of Civil Appeals erred in holding that it had no jurisdiction because the judgment was not appealable, and erred in dismissing the appeal. Tex.Civ.App., 327 S.W.2d 787.
We believe the Court of Civil Appeals has based its opinion upon the premise that the instant case is merely an action for an accounting of community property. We view this suit not only as an action between husband and wife for division of community property, but also as a suit against a third party for title to and partitioning of certain assets. It is our opinion that the judgment is appealable and the Court of Civil Appeals has jurisdiction of the cause for the reasons to be discussed.
The judgment of the trial court that the petitioner (plaintiff) 'take nothing by this suit other than the relief...
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