Fox v. Fox

• Decision Date: 27 October 1915
• Docket Number: (No. 5616.)
• Citation: 179 S.W. 883
• Parties: FOX v. FOX.
• Court: Texas Court of Appeals

179 S.W. 883

FOX v. FOX.

(No. 5616.)

Court of Civil Appeals of Texas. San Antonio.

October 27, 1915.

Appeal from District Court, Bexar County; W. S. Anderson, Judge.

Action by Ida West Fox against E. A. Fox for divorce and the recovery of separate property. From an order of injunction, defendant appeals. Affirmed.

Arnold, Cozby & Peyton, M. W. Davis, and Davies & Davies, all of San Antonio, for appellant. Carlos Bee, C. C. Todd, and Ball & Seeligson, all of San Antonio, for appellee.

CARL, J.

Appellee, Ida West Fox, on May 11, 1915, filed suit against appellant, E. A. Fox, for divorce, and for the recovery of her separate property, and obtained an injunction against appellant. On August 31, 1915, the court overruled a motion to dissolve this injunction, and continued same in force until the further orders of the court. This is the order from which this appeal is prosecuted.

The petition alleges that the plaintiff was, and had been at the time of the filing of the petition, a bona fide resident of the state of Texas and county of Bexar for one year before such filing of the petition. In addition to the allegations in support of the divorce prayed for, the petition charges that appellant married her in order to secure all her available money, and had appropriated the same to his own use; that prior to the marriage the appellant persuaded appellee to loan him $2,500, and executed a deed of trust on certain real estate in San Antonio, which he never owned, but which stood in the name of his daughter, Blanche Fox, and since the marriage he has taken from appellee the notes and deed of trust covering this loan so that she would not have any evidence of said debt; and, further, that since the marriage appellant had secured from her $10,000, agreeing to lend same for her and give her the securities for same, which he has failed and refused to do, and refuses to account to her for the same. The petition also alleges that a certain $2,000 vendor's lien note was purchased out of her said money, and that certain other property and purchases were made with her money, and charges that funds in the State Bank & Trust Company are a part of her said sum of money.

A divorce was prayed for; also a judgment for $12,500 so fraudulently obtained, and that same be declared a lien upon property alleged to belong to appellant; and for an injunction restraining the bank from paying out any of said money upon appellant's checks, and to restrain the defendant from disposing of the real estate pending the suit.

The motion to dissolve the injunction was based mainly upon the following grounds:

(1) That the plaintiff was not a bona fide resident citizen and inhabitant of the county of Bexar, state of Texas, ano was not at the time of filing the suit; that when defendant and plaintiff married on February 13, 1915, appellee gave her residence as the city of St. Louis, in the state of Missouri, and was not at that time, and never had been, a resident citizen of the state of Texas. It is alleged therein that after the marriage they came to Texas and moved out on a ranch in Medina county, where they resided at the time this suit was filed, and that by reason thereof the Thirty-Seventh district court of Bexar county had no jurisdiction to try the cause, which, it is alleged, is a suit for divorce, and that neither plaintiff nor defendant was an actual bona fide resident citizen of Bexar county.

(2) That the injunction issued and served upon the State Bank & Trust Company impounded and tied up funds belonging to E. A. Fox, defendant, and prevented him from selling any property.

The plaintiff below denied these allegations, and replied that it was necessary for her health, pleasure, and business that she be away from Bexar county a great deal, but that she had, while gone, kept her room here, in which her personal effects were left. She admitted that they went upon the ranch in Medina, Bexar, or Bandera county, but says she thinks it was situated partly in all of said counties, but says that this sojourn was never intended by either of them to be aught but temporary. She alleges that appellant did not own the ranch, but had merely a contract or option to buy same, and that a large part of her separate funds, acquired as formerly stated from her by defendant, was invested in same and improvements thereon, and asserted that she was entitled to an equitable lien on same. She alleges, further, that she believes that appellant has conspired with Becher, the man from whom he obtained the contract for said land, to surrender his contract or convey same to Becher, or some other person, to defraud her of the equity therein.

This supplemental petition and reply further alleges that the fraudulent acts of the defendant were committed in whole or in part in Bexar county, and that some of the stock purchased with the money fraudulently acquired from her were in Bexar county, and that since the injunction was issued defendant had disposed of a part of the stock, and converted the proceeds to his own use. Harry Becher was made a party. The injunction issued was later modified so that it would not prevent E. A. Fox from collecting from the State Bank & Trust Company the money on deposit in the name of E. A. Fox or the Fox Realty Company, and he was permitted to check all he desired either as E. A. Fox or Fox Realty Company.

Any further statement necessary will appear in course of the discussion which follows.

The main contention is that the evidence does not show that the plaintiff had been an actual bona fide inhabitant of the state of Texas for one year and had resided in Bexar county for six months next preceding the filing of the petition. This case, as it comes to us on the question of jurisdiction, must be controlled by the facts in evidence as to the residence of Mrs. Fox, the plaintiff below.

Under the law, as it now stands (article 4632, Vernon's Sayles' Statutes), the petition and proof in support thereof must show that at the time of the filing of such petition the plaintiff had been an actual bona fide inhabitant of the state for a period of twelve months, and had resided in the county where the suit is brought for six months next preceding the filing of the same.

Defendant testified that he met the plaintiff about December 24, 1914, and they were married on the 13th of February, 1915, at St. Louis, Mo. There is an affidavit in evidence, made by both the parties to this suit for the purpose of obtaining a marriage license in St. Louis, in which the residence of appellee is given as 5331A, Ridge avenue, St. Louis, Mo. When they married they came to San Antonio, and he says they first lived at 121 Uvalde street, where they arrived on February 15th, which they were to vacate on March 1st. He says they vacated the house on Uvalde street, and stayed at the Travelers' Hotel. The house on Uvalde street was his home up to that time, according to his statement, and he brought his wife there to that house, which he says, however, was in his daughter's name. He says, further, that on the 2d of March they went to the Travelers' Hotel, but that on the 11th or 12th of March she made a trip to St. Louis, and came back on March 28th, and went out to the ranch with him. This ranch, according to his testimony, is in Medina county.

There is a great deal of testimony on both sides as to the matter of residence; but, since the court heard evidence on that issue and determined it in favor of the appellee, we will direct our investigation towards...