Gibson v. Gibson, 11686.
| Decision Date | 19 March 1947 |
| Docket Number | No. 11686.,11686. |
| Citation | 202 S.W.2d 288 |
| Parties | GIBSON v. GIBSON. |
| Court | Texas Court of Appeals |
Appeal from District Court, Seventy-Third District, Bexar County; Robt. W. B. Terrell, Judge.
Action by Irene Gibson against Earl L. Gibson for divorce. From judgment granting a divorce but denying recovery of community property, plaintiff appeals.
Portion of judgment appealed from reversed and remanded for new trial.
Newton & Archer, of San Antonio, for appellant.
Maxwell Burkett, of San Antonio, for appellee.
This is an appeal in a divorce suit. Irene Gibson was granted a divorce from her husband, Earl L. Gibson, but denied recovery of any community property.
The appeal is taken by Irene Gibson from that part of the judgment which denied to her any community interest in the stock in trade in the Diamond Liquor Store, a business owned by her husband at the time of marriage, and any money on deposit in the account of the Diamond Liquor Store with the National Bank of Fort Sam Houston.
Appellant contends that the court erred in decreeing that the stock in trade and the bank account of the Diamond Liquor Store were the separate property of the husband and that the wife had no community interest therein.
The evidence shows that appellee purchased the Diamond Liquor Store in September, 1945, and that he and appellant were married in October, 1945, thus appellee unquestionably owned the fixtures and the stock in trade of the Diamond Liquor Store at the time he and appellant were married. The Diamond Liquor Store was a going concern, whiskeys, wines and other liquors were being daily sold and replaced with new stock.
The trial court found, in effect, that at the time of his marriage to appellant appellee's net worth was $24,891.39, which was the value of the stock in trade, furniture and fixtures of the Diamond Liquor Store and cash in bank to the credit of the Liquor Store, while at the time the divorce suit was filed the net value of this property was $24,147.18. In other words, the inventory of the furniture, fixtures, stock in trade and cash in bank of the Diamond Liquor Store, was $744.21 less at the time of divorce than it was at the time of marriage. Upon this finding the trial court decreed that appellant had no community interest in the stock in trade of the Diamond Liquor Store or in its bank account.
Under the provisions of Article 4619, Vernon's Ann.Civ. Stats., "all the effects which the husband and wife possess at the time the marriage may be dissolved shall be regarded as common effects or gains, unless the contrary be satisfactorily proved."
The evidence shows that during the time these parties were married appellee was continually buying and selling whiskey, wine and other merchandise and making a profit therefrom; that appellee had only one bank account in which he mixed and mingled the profits from the sales together with the capital investment; that practically all of the specific stock in trade in the possession of appellee at the time of marriage had been disposed of and replaced by new stock, paid for out of funds representing in part the profits of the business; that appellee kept no records as to how much of the capital investment and how much of the profits were used in replenishing the stock and it only shows that at the end of the marriage there was a decrease in the inventory of some $744.21.
Hardee, Sheriff, v. Vincent, 136 Tex. 99, 147 S.W.2d 1072, 1073, is directly in point. In that case Mr. Vincent gave his grocery store to his wife as her separate property, but they thereafter operated such business, selling the stock in trade and replenishing it with new stock. This new stock was paid for out of an account which did not show how much of it was original capital and how much was profits from the business. Later a judgment was rendered against Mr. Vincent and a levy made upon the stock in trade in the store and Mrs. Vincent claimed the same as her separate property.
Judge Slatton, speaking for the Commission of Appeals, said:
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Duncan v. United States, 16310.
...775, writ of error refused; Walker-Smith Co. v. Coker, Tex.Civ.App., 176 S.W.2d 1002, 1007, error refused, want merit; Gibson v. Gibson, Tex.Civ.App., 202 S.W.2d 288, 289. The act of mixing or commingling separate and community property may have a substantial effect upon the resulting prope......
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Edsall v. Edsall
...Wilson v. Wilson, Tex.Civ.App., 200 S.W.2d 258; Lindemood et al. v. Evans, Tex.Civ.App., 166 S.W.2d 774 (Writ Ref.); Gibson v. Gibson, Tex.Civ.App., 202 S.W.2d 288; Davis v. Duncan, Tex.Civ.App., 102 S.W.2d 287; Epperson et al. v. Jones et al., 65 Tex. 425; Hardee, Sheriff, v. Vincent, 136 ......
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Griggs v. Reed
...Wilson v. Wilson, Tex.Civ.App., 200 S.W.2d 258; Lindemood, et al. v. Evans, Tex.Civ.App., 166 S.W.2d 774 (Writ Ref.); Gibson v. Gibson, Tex.civ.App., 202 S.W.2d 288; Davis v. Duncan, Tex.Civ.App., 102 S.W.2d 287; Epperson v. Jones, 65 Tex. 425; Hardee v. Vincent, 136 Tex. 99, 147 S.W.2d 107......
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Blumer v. Kallison
...the community presumption obtained and the property involved should be accordingly treated. For example, this Court in Gibson v. Gibson, Tex.Civ.App., 202 S.W.2d 288, in holding that a stock of whiskies and other property should be regarded as community property, specifically pointed out th......