Gard v. Gard

• Decision Date: 14 November 1951
• Docket Number: No. 4784,4784
• Citation: 244 S.W.2d 884
• Parties: GARD v. GARD.
• Court: Texas Court of Appeals

Page 884

244 S.W.2d 884

GARD v. GARD.

No. 4784.

Court of Civil Appeals of Texas, El Paso.

Nov. 14, 1951.

Alfred E. Creigh, Jr., Alpine, for appellant.

Mae M. Ament, Alpine, for appellee.

SUTTON, Justice.

This is our second consideration of this case. The nature of the case is stated in our former opinion, 239 S.W.2d 410, and that of the Supreme Court, 241 S.W.2d 618, 619. On our initial consideration of it we concluded an award for the support and education of minor children is one for their benefit, and that the parent or other person designated to receive the award and use it for the benefit of the minors has no proprietary rights in the amounts ordered to be paid for the support of the children, and since the wife in this case brought the suit in her individual capacity and recovered in the same manner such amounts were not the measure of her damages, but the amounts she expended or otherwise supplied for necessities which the husband failed to supply, and that she could only recover on the foreign judgment in her representative capacity. The Supreme Court did not agree with these conclusions and held the matured payments 'became the property of petitioner (the plaintiff wife), and respondent cannot be heard to say that she has no cause of action therefor or that she is required to prove in our courts what she actually and reasonably expended for support and maintenance of the two children before the youngest reached 18 years of age,' and remanded the case to this court for a disposition of other points.

It seems to us the decision of the Supreme Court is decisive of the case and the other points are largely, if not wholly, immaterial and of little moment. One complaint is the trial court erred in not disposing of the special exceptions when presented and waiting until the conclusion of the evidence to overrule them. This was a proper exercise of discretion in the trial to the court. Keith v. Allen, Tex.Civ.App., 153 S.W.2d 636. One exception was the copy of the judgment was not properly authenticated and, therefore, could not form the basis of a cause of action. This was a matter of pleading and not of evidence. It was only essential that the judgment be described sufficiently to identify its terms in the petition, which the petition did, and it was immaterial that the copy of the judgment attached to the petition was not authenticated. Hall v. McKay, 78 Tex. 248, 14 S.W. 615; 50 C.J.S., Judgments, § 880, page 456. The other exceptions presented matters of defense, limitation; there is no allegation that it was valid and subsisting and not dormant; and that it is not a final judgment but still subject to the control of the court in which it was rendered.

Complaint is also made the court erred in not sustaining and acting upon a motion to strike the first supplemental petition filed by the plaintiff, the only action thereon being found in the judgment of the court. The court recites in his judgment the motion was denied and that is a sufficient action thereon.

Another point is the court erred in not sustaining defendant's objections to the introduction in evidence of the authenticated judgment of the District Court of Idaho to the effect the judgment does not import a final judgment and shows no action by way of enforcement and does not recite the day of July, 1936, when it was entered. The finality of the judgment has been determined. The judgment in the beginning recites the case came on for trial on the ___ day of July 1936, and this omission of the day seems to be the objection made to it. But the judgment recites at the conclusion: 'Done in open Court this 7th day of July, 1936', and is a sufficient recitation of the date of rendition and entry.

It is not necessary to show any action by way of...