Givens v. Givens

• Decision Date: 16 May 1917
• Docket Number: (No. 5870.)
• Citation: 195 S.W. 877
• Parties: GIVENS v. GIVENS.
• Court: Texas Court of Appeals

195 S.W. 877

GIVENS v. GIVENS.

(No. 5870.)

Court of Civil Appeals of Texas. San Antonio.

May 16, 1917.

Rehearing Denied June 13, 1917.

Appeal from District Court, Hidalgo County; V. W. Taylor, Judge.

Suit by Julia M. Givens against H. L. Givens. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Glasscock, McDaniel & Bounds, of McAllen, for appellant. Geo. P. Brown, of Laredo, and D. F. Strickland, of Mission, for appellee.

FLY, C. J.

This suit was instituted by appellee, who although styled Julia M. Givens, claims to be Julia M. Harrison, and was joined by F. W. Harrison, as her husband, to recover of appellant one-half of certain lands which she alleged were the community estate of herself and appellant, having been acquired during her coverture with him. She alleged that on November 14, 1914, she obtained a divorce from appellant in the circuit court of St. Louis, Mo., and on October 20, 1915, was married to F. W. Harrison. Appellant denied that the St. Louis court ever obtained jurisdiction over him and that any valid decree of divorce was ever granted, "in that no valid service of citation and notice was ever served on him," that he and appellee were married in 1883, and lived together as man and wife until 1906, when they separated, and that the property had been earned by him since said separation.

Over the protest of appellant, a purported certified copy of a decree of divorce entered by default by the circuit court of the city of St. Louis, of date November 4, 1914, was introduced in evidence, the objection to it being that it was not shown that the court had jurisdiction, and that the certificate had not been certified by the court, but by the clerk alone. Without objection appellee testified that the certified copy was substantially the same as the original judgment. She testified to having examined the original, and that the document introduced in evidence was a true copy. This was sufficient to admit it. St. Louis Metal Co. v. Beilharz, 88 S. W. 512; Harvey v. Cummings, 68 Tex. 599, 5 S. W. 513.

It is well settled that a judgment of divorce granted in another state may be collaterally attacked by showing that the court which granted it was without jurisdiction, even though jurisdictional facts are recited in the judgment. Norwood v. Cobb, 24 Tex. 554; Chunn v. Gray, 51 Tex. 112; Redus v. Burnett, 59 Tex. 581; Morgan v. Morgan, 1 Tex. Civ. App. 315, 21 S. W. 154; Stuart v. Cole, 42 Tex. Civ. App. 478, 92 S. W. 1040; Batjer v. Roberts, 148 S. W. 841. The rule that a domestic judgment in which service is recited cannot be collaterally attacked does not apply to a foreign judgment. League v. Scott, 25 Tex. Civ. App. 318, 61 S. W. 522; Batjer v. Roberts, herein cited. It follows that appellant could attack the foreign judgment by default offered in this case, and could have done so had it been a domestic judgment, as it does not recite service on appellant.

The facts in this case show that judgment for a divorce was rendered in the circuit court of St. Louis, Mo., and that a writ was issued to the sheriff of St. Louis, commanding him to summon Henry L. Givens to appear at a certain term of the court in St. Louis, to answer a certain complaint set out in a petition attached to the writ. The writ was handed to appellant by Tom Mayfield in Hidalgo county, Tex., in the town of McAllen. No other notice of the suit was given him. This testimony was uncontroverted, and it follows that the summons issued to a Missouri sheriff was handed to a defendant in Texas by some person, and that the judgment of divorce rests on that service alone. What the laws of Missouri may be on the subject was not shown, and if it be presumed that the law as to serving a party in another state is the same in Missouri as in Texas, there was no service on appellant, and the St. Louis court was without jurisdiction to render the judgment, and it is null and void. Such presumption will be indulged in the absence of allegation and proof of the foreign law. Sadler v. Anderson, 17 Tex. 245; Railway v. Wise, 101 Tex. 459, 109 S. W. 112; Railway v. Mitten, 13 Tex. Civ. App. 653, 36 S. W. 282.

Article 1869, Revised Statutes of Texas, provides that, where the defendant is absent from the state, or is a nonresident of the state, the clerk, upon application by any party to the suit, his agent or attorney, shall address a notice to the defendant to appear...