Housewright v. Housewright, 12431.
| Decision Date | 18 July 1931 |
| Docket Number | No. 12431.,12431. |
| Citation | 41 S.W.2d 1071 |
| Parties | HOUSEWRIGHT et al. v. HOUSEWRIGHT. |
| Court | Texas Court of Appeals |
Appeal from District Court, Tarrant County; James E. Mercer, Judge.
Suit by Beulah D. Housewright against A. C. Housewright and another. Judgment for plaintiff, and defendants appeal.
Affirmed.
P. Walter Brown and C. W. Goerte, both of Fort Worth, for appellants.
Elton M. Hyder, of Fort Worth, for appellee.
This suit originated in one instituted by Beulah Housewright against A. C. Housewright and wife, in which she alleged that she owned an undivided one-half interest in fee and a life estate in the other one-half of lots 5 and 6, in block 27 in the Fairmount addition to the city of Fort Worth. She further set forth certain liens and needed repairs on the house situated on the premises, which it was charged defendant A. C. Housewright refused to provide for, and she prayed for a partition of the property, or if incapable of partition, that the property be sold and that she receive the value of her interest out of the proceeds.
The defendant A. C. Housewright, joined by his then wife, Mary A. Housewright, answered by a general denial, but specially admitted and agreed that the "plaintiff is entitled to a partition of said real estate described in plaintiff's petition, that is, lots 5 and 6 in Block 27, in Fairmount Addition to the City of Fort Worth, and that the same should be granted and said property divided."
The defendants, by way of a cross-action, further specially alleged that about September 29, 1927, A. C. Housewright was granted a divorce from the plaintiff Beulah Housewright, alleging in substance that in the decree therefor the plaintiff had been adjudged the use and occupancy of the lots mentioned, upon which was situated their homestead and which was owned by them in community, together with the household effects; that he was the community owner of one-half of said property; that the property was incapable of partition. He further set up certain indebtedness for taxes, liens, attorney's fees, etc., for which he prayed to be reimbursed out of the proceeds of the property when sold.
The trial was before the court without a jury and resulted in a judgment in the plaintiff's favor in accord with the disposition made of the community property of the parties by the divorce decree, and the defendants have duly appealed.
The trial court filed conclusions of fact and law, which we have concluded sustains his judgment, and but two material questions are presented by appellants' assignment of error:
First, can appellants in this case, which was one for partition, set aside as void the divorce decree on the ground that the court was without power to grant the divorced wife, Beulah Housewright, the right to continue to occupy and use the homestead and household and kitchen furniture during her lifetime or until she remarried, notwithstanding the fact that there were no children of the marriage or other constituent member of the family?
Second, does the record sustain appellants' contention that the judgment from which this appeal has been taken should be set aside on the ground that at the time of its entry neither appellants nor their counsel were present or offered testimony?
That the decree of divorce, which without dispute has never been set aside, is, in this undoubted collateral action, conclusive of the respective rights of Beulah and A. C. Housewright in the property owned by them at the time, must be assumed without the citation of authority. Indeed, it was admitted by the able counsel for appellants on the submission that unless, as is contended, the divorce decree is void in the strict sense of that term, on the ground that the court was wholly without power to vest in Beulah Housewright the right to occupy and use the homestead and household effects during her life or until she remarried, including A. C. Housewright's community interest therein, appellants had no standing in court. That this may be done seems to be settled contrary to appellants' contention by the decision of our Supreme Court...
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