Holmes v. Jackson

• Citation: 200 S.W.2d 276
• Decision Date: 13 February 1947
• Docket Number: No. 2704.,2704.
• Parties: HOLMES v. JACKSON.
• Court: Texas Court of Appeals

Page 276

200 S.W.2d 276

HOLMES v. JACKSON.

No. 2704.

Court of Civil Appeals of Texas. Waco.

February 13, 1947.

Rehearing Denied March 13, 1947.

Appeal from District Court, Limestone County; H. F. Kirby, Judge.

Suit for divorce by Willie Rea Jackson against Mary Ellen Jackson, who filed a cross-complaint for divorce wherein a judgment was entered for the defendant on her cross-complaint and awarded her custody of child, and defendant subsequently married one Holmes, and the plaintiff subsequently sought to have the child awarded to him. From judgment overruling the defendant's plea of privilege, the defendant appeals.

Judgment affirmed.

J. S. Simkins and Joe E. Anderson, both of Corsicana, for appellant.

W. W. Mason, of Mexia, and Bradley & Bradley, of Groesbeck, for appellee.

LESTER, Chief Justice.

The appellant and appellee, prior to March 2, 1943, were husband and wife. On said date appellant secured a divorce in the 77th District Court of Limestone County from appellee and in the decree she was awarded the care and custody of their minor son, who was at that time about five years of age.

The record reveals that in the early part of 1942, appellee filed in said District Court of Limestone County a suit for divorce. In his petition he alleged many acts of misconduct upon the part of his wife and asked for the care and custody of their minor child. Appellant, on July 16, 1942, filed a cross-action in said suit, in which she alleged improper relations existing between appellee and another woman. She prayed that she be granted a divorce and also that she be awarded the care and custody of their minor child. Shortly thereafter they reached a reconciliation by agreeing that they would move to Indiana and start over again, with the understanding that the appellee would dismiss his suit for divorce and that appellant would dismiss her cross-action. Appellee dismissed his suit but appellant failed to dismiss her cross-action as she had agreed to do, such failure being unknown to appellee. He went to Indiana and secured employment in a war plant. Shortly thereafter he sent money back to defray the expenses of his wife and child for their trip to where he was then located. Upon their arrival they resumed their relationship as husband and wife and lived together as such for a period of about three weeks, when they had a misunderstanding concerning the woman whose name appellant had alleged in her cross-action. This resulted in appellant and their child coming back to Texas, and on November 10, 1942, she filed in the same suit an amended cross-action, setting up for divorce the same ground she had alleged in her original cross-action, and praying for divorce and for the care and custody of their child. Without securing any service of process upon the amended cross-action, on March 2, 1943, appellant was granted a divorce and the care and custody of their minor child was awarded to her.

On May 9, 1946, appellee filed a petition in the 77th District Court of Limestone County which he designated a "petition for custody of child," in which he set up changed conditions since the decree was entered, and alleged that by reason of such changed conditions the best interests of the child required that its custody should be awarded to him.

Appellant, on June 10, 1946, filed a formal plea of privilege and prayed that said proceeding be transferred to Navarro County, Texas, the place of her residence. She also filed, on the same date, subject to her plea of privilege, a plea in abatement, setting up her coverture and praying that said suit be abated and dismissed on the ground that she was then a married woman, being married to Sam Holmes.

On June 11, 1946, appellee filed his amended petition in said cause, in which he alleged that he had in his original petition for divorce alleged as ground therefor illicit relations on the part of his wife with other men; that she urged him to dismiss his suit for a divorce and agreed that she would dismiss her cross-action and that she would go with him to Indiana where he had a job in a war plant and they would start anew, which he agreed to do; that within a few weeks she took the child and returned to Limestone County and filed a cross-action against him; that he was frozen on the job at which he was working and could not leave except by special permission and the divorce had been granted before he was able to come to Texas, for which reason he did not interpose any defense to the allegations set out in his wife's cross-action, all of which were untrue; that said promise on the part of his wife to dismiss her cross-action was made with a false intent and purpose of getting plaintiff out of the state of Texas and having him dismiss his suit, constituted fraud upon the court, and that all the allegations in her cross-action, if any she had, had been condoned by her living with the appellee in Indiana; that the judgment awarding to her the custody of the child was obtained through fraud practiced upon appellee and the court and should be set aside because of such fraud and the custody of the child awarded to him. Appellee also pleaded, in the alternative, changed conditions since the granting of the divorce, and prayed that the custody of the child be awarded to him in event his allegations of fraud were not sustained.

On June 17, 1946, appellee filed his affidavit controverting appellant's plea of privilege, alleging that this suit was a proceeding making a direct attack upon a judgment of said court entered at a previous term, and asking that that part of said judgment in which the care and custody of the child was awarded to appellant be set aside on the ground of fraud which was perpetrated upon appellee and upon the court; making his amended petition a part of said controverting affidavit for all purposes.

On July 6, 1946, appellant and appellee appeared in person, together with their respective attorneys, and proceeded to trial on the plea of privilege, which the court overruled.

Appellant's first point is: "There being absolutely no evidence of extrinsic fraud on the part of appellant offered before the trial court, the trial court was clearly in error in overruling appellant's plea of privilege."

The rule is that where a party has a cause of action or a defense which is meritorious and, without negligence on his part, has been prevented from presenting his cause of action or making a valid defense by misrepresentations or misconduct of the opposite party, he may have the whole judgment or a part thereof set aside after the expiration of the term at which it was rendered, where such failure to appear was the result of reliance upon a representation on the part of the opposite party that the case would be dismissed, especially where the promise was made with a design to cheat and deceive and the party had no intention at the time of performing it. Wootton v. Jones, Tex. Civ.App., 204 S.W. 237, which was affirmed by the Commission of Appeals and approved by the Supreme Court in 228 S.W. 142; Trammell v. Trammell, Tex. Civ.App., 80 S.W. 119; Keller v. Young, Tex.Civ.App., 186 S.W. 405; Marsh v. Tiller, Tex.Civ.App., 279 S.W. 283.

There is no rule of law any firmer rooted in our jurisprudence than the one that requires a bill of review, when brought as a direct attack upon a judgment, that it be brought in the court in which such judgment was entered. This is true whether by bill of review or by injunction. Halbrook v. Quinn, Tex.Civ. App., 286 S.W. 954; Carey v. Looney, 113 Tex. 93, 251 S.W. 1040; Oetting v. Mineral Wells, Tex.Civ.App., 262 S.W. 93; Cotulla State Bank v. Herron, Tex.Civ. App., 218 S.W. 1091; 25 Tex.Jur., sec. 230, p. 647.

The case of McCook v. Amarada Petroleum Corporation, Tex.Civ.App., 73 S.W.2d 914, holds that the district court rendering partition judgment had exclusive venue and jurisdiction as a matter of law of a suit in equity to vacate such judgment, though the land was located in another county; that it was unnecessary for plaintiff to file affidavit controverting defendant's plea of privilege; that the court will look to the plaintiff's petition and determine the nature of the cause of action solely as a matter of law and that a demurrer to the defendant's plea of privilege was sufficient.

The case of Yates v. State, Tex.Civ. App., 3 S.W.2d 114, was a suit brought in the District Court of Travis County by the Attorney General of the State in trespass to try title for recovery for the public school fund of an undivided 15/16ths interest in the oil and gas estate in sold public school lands situated in Pecos County. None of the defendants resided in Travis County and each filed formal plea of privilege, which were not controverted by the State. It was held that since Article 5420 of Vernon's Ann.Civ.Stats. fixes the venue of such suits in Travis County, the question of venue in said cause was a matter of law to be determined by the plaintiff's pleadings as to the nature of such suit, and that there was no issue of fact involved; that it was the duty of the...