Harkness v. Harkness

• Decision Date: 07 December 1927
• Docket Number: (No. 7156.)
• Citation: 1 S.W.2d 399
• Parties: HARKNESS v. HARKNESS.
• Court: Texas Court of Appeals

1 S.W.2d 399

HARKNESS v. HARKNESS.

(No. 7156.)

Court of Civil Appeals of Texas. Austin.

December 7, 1927.

Appeal from District Court, Bastrop County; J. B. Price, Judge.

Suit for divorce by Mrs. Dell M. Harkness against J. W. Harkness. Judgment for defendant, and plaintiff appeals. Affirmed.

Alexander & Alexander, of Smithville, for appellant.

Merton L. Harris, of Smithville, and S. L. Staples, of Austin, for appellee.

BAUGH, J.

Appellant sued appellee for divorce, alleging cruel treatment, and for partition of the community property. She also asked for a temporary injunction pending trial, restraining appellee from disposing of the property or incurring debts against same, for alimony, and for an accounting. The trial judge entered his fiat on said petition ordering the clerk to "issue a writ of injunction in all things as prayed for," conditioned upon appellant's execution of a bond with proper sureties in the sum of $500. The record presented to us does not disclose, however, whether said bond was ever made by appellant, or whether such writ was issued by the clerk; nor does it show any order of the court granting alimony pending a hearing of the case.

The case was submitted to a jury upon seven special issues. The first of these, and the jury's answer thereto, was as follows:

"Was the defendant guilty of excesses, cruel treatment, or outrages toward the plaintiff of such a nature as to render their living together insupportable? Answer: No."

A proper explanatory charge was given to the jury in connection with this issue; and we find that the evidence was sufficient to sustain the finding of the jury. But the jury did not answer any of the remaining six issues, all of which related to the property involved, and were submitted for the purpose of making a proper partition thereof in the event the divorce was granted. The trial court rendered judgment on the jury's answer to question No. 1 that plaintiff take nothing, from which judgment she appeals.

We shall not undertake to discuss in detail appellant's numerous assignments of error. Only two issues are raised which we deem it necessary to discuss. These issues are: (1) Whether appellant was entitled to have the jury answer the questions establishing the property rights between the parties irrespective of the divorce; and (2) whether all the costs were properly taxed against appellant.

We sustain neither of these contentions. This case is clearly distinguishable from the line of cases authorizing injunctive relief, or even the appointment of a trustee to take charge of the property, where the husband is squandering, dissipating, or disposing of the separate property of the wife, even though no divorce is granted, as was true in Heintz v. Heintz, 56 Tex. Civ. App. 403, 120 S. W. 941; Borton v. Borton (Tex. Civ. App.) 190 S. W. 192; and Coss v. Coss (Tex. Civ. App.) 207 S. W. 127. In the instant case the pleadings clearly disclose a suit primarily for divorce, and for a partition of the community property dependent upon its being granted. It is true that a temporary injunction was asked for, but this was obviously for the purpose of preserving the community estate pending a hearing on the divorce proceeding. No issues were submitted to the jury, and none were requested by appellant, which involved any dissipation, squandering, or disposition, to her prejudice, of either...