Hemman v. Hemman

• Decision Date: 19 April 1923
• Docket Number: (No. 1430.)
• Citation: 251 S.W. 313
• Parties: HEMMAN v. HEMMAN.
• Court: Texas Court of Appeals

251 S.W. 313

HEMMAN v. HEMMAN.

(No. 1430.)

Court of Civil Appeals of Texas. El Paso.

April 19, 1923.

Appeal from District Court, El Paso County; P. R. Price, Judge.

Suit by Maud Wilson Hemman against Nelson Hemman. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Isaacks & Lattner, of El Paso, for appellant.

Turney, Burges, Culwell, Holliday & Pollard, of El Paso, for appellee.

HIGGINS, J.

Appellee brought this suit for divorce upon the ground of cruel treatment, for custody of a daughter of the parties nine years old, and settlement of property rights.

Upon trial without a jury the divorce was granted and custody of the child awarded the appellee, subject to the father's right to see it at all proper times. Certain vendor's lien notes were set aside for the support and maintenance of the child until she became of age, married, or died. The City National Bank of El Paso was appointed trustee and directed to reduce said notes to possession, the same being adversely held by a third party, and administer the same in trust, the income to be devoted to the support and maintenance of the child, and upon the termination of the trust by the death, marriage, or majority of the child to pay to the appellee $5,000 of the principal to reimburse her separate estate for sums due by the community, and the balance of the trust estate to be divided equally between the plaintiff and defendant.

The appellant first complains of the court's refusal of his demand for a trial by jury.

The bill of exception taken to this action of the court discloses the following facts:

"When the case was called on appearance day of the term, the defendant made his demand for a jury in open court as required by law, but did not at that time pay the jury fee required by law. Thereafter the plaintiff had the case regularly set for trial on October 30th, as a nonjury case. On the morning of October 30th, and before court convened, the defendant paid to the clerk of the court his jury fee, and said cause was placed upon the jury docket. A jury for all of the district and county courts of El Paso county for the week beginning October 30th had been regularly drawn and were in attendance upon court, and when the case was called for trial there were in attendance in the courtroom more than 24 jurors of the regular panel for the week. Whereupon the plaintiff objected to the case being tried before a jury, which objection the court sustained, and refused to permit the defendant the right of trial before a jury, although a jury regularly drawn was in attendance upon court and in the courtroom at the time, which jury was by the court discharged after the objection of plaintiff was sustained."

The court qualified the bill with this statement:

"That said cause was set by the bar committee for trial as a nonjury case on the 2d day of October, 1922, for the 30th and in pursuance with the custom the same day published as set for the 30th; that for many years the docket of this court has been set by a committee from the bar, the members of the bar meeting on Monday morning at 9 o'clock, a. m. when the docket is called for setting; a case is set by said committee for four weeks subsequent to its call for setting; that the first week of the term and the last week of the term have, by custom long acquiesced in, been set apart as nonjury weeks; that on Monday morning, October 30, 1922, there was in attendance on the Thirty-Fourth district court a panel of jurors, the judge thereof having called for that day, a special term; there existed an understanding between the judges of the Thirty-Fourth and Forty-First districts that after the jury requirements for the Thirty-Fourth were met a panel would be furnished to try, as a jury case, the cause of Peden v. Gonzales, a case involving attorney's fees; that for some reason the judge of the Thirty-Fourth district court did not try jury cases at the special term as contemplated, and ordered the jurors on Monday, October 30, 1922, to report to the Forty-First district court, which they did, and same were in attendance, as before indicated, at the time the trial by jury was denied as aforesaid; the Forty-First district court adjourned by operation of law on the 4th day of November, 1922; that set for trial on Monday, October 30, 1922, for that nonjury week, were the following cases, to wit: Rio Grande Mortgage Company v. Wheeler; this case, Hemman v. Hemman; Johnson v. Johnson; McDowell v. Jones; Porter v. Williams; Neill v. Rhea; Southern Surety Company v. El Paso Electric Railway Company; and Apodaca v. Pendell.

"That, had the jury fee been paid in this case, it could have been set as a jury case on any Monday subsequent to the payment of the fee for four weeks subsequent to the date...