Jernigan v. Jernigan

• Decision Date: 13 May 1971
• Docket Number: No. 7242,7242
• Citation: 467 S.W.2d 621
• Parties: Bessie JERNIGAN et al., appellants, v. Vivian JERNIGAN et al., Appellees.
• Court: Texas Court of Appeals

Page 621

467 S.W.2d 621

Bessie JERNIGAN et al., appellants, v. Vivian JERNIGAN et al., Appellees.

No. 7242.

Court of Civil Appeals of Texas,

Beaumont.

May 13, 1971.

Rehearing Denied June 3, 1971.

Will A. Morris, Jr., Charles W. Trueheart, San Antonio, Edwin H. White, Rocksprings, for appellant.

Claude H. Gilmer, Rocksprings, Taylor Nichols, Uvalde, Gaynor Kendall, Austin, for appellee.

KEITH, Justice.

We review interlocutory appeals from the District Court of Uvalde County granting a temporary injunction and denying pleas of privilege. Because of the involved nature of the litigation, an extensive statement of the underlying fact structure is required.

Statement of Case

Our appellant, Bessie Jernigan, brought this suit in Uvalde County, alleging that she was the surviving widow of Neal G. Jernigan, deceased, who died in 1957. She named as parties defendant Vivian Jernigan, individually and as independent executrix of the estate of Neal G. Jernigan, and four individuals alleged to be the 'children and heirs at law of said deceased.' Because of the common surname, we will speak of the original plaintiff as 'Bessie', the primary defendant as 'Vivian', and the decedent as 'Neal'.

Bessie alleged the she and Neal were lawfully married in 1914 and 'were never legally divorced and said marriage was dissolved by the death of said deceased (Neal) as aforesaid.' She sought to avoid the legal effect of a separation agreement entered into with Neal in 1931, and contended that all of the property owned by Neal at the time of his death in 1957 was the community property acquired during their marriage. According to her allegations, this community property included the Walcott Ranch in Uvalde County, purchased in 1957, as well as many items of personal property, including cash, bonds, livestock, etc., alleged to be situated in Uvalde County. She included elaborate allegations to the effect that the separation agreement was void and of no effect and contended that she is 'entitled to have said so-called (separation) agreement cancelled, set aside and held for naught and removed as a cloud from plaintiff's title to the real and personal property here in suit.'

Further allegations were to the effect that Vivian had qualified as independent executrix of Neal's estate and that she and the other original defendants, who were children of Neal, 'controvert the title and rights of plaintiff herein asserted and sued for.' She estimated the value of the land and personal property 'here in suit' was in excess of $300,000.00.

Two additional defendants were named in an amended pleading filed by Bessie, and apparently they filed pleas of privilege along with Vivian. However, these pleas of privilege were waived and Vivian and the two added defendants answered to the merits. The other four original defendants appeared generally, although none were alleged to be residents of Uvalde County.

Vivians's answer to the merits was also elaborate but it is sufficient to say that she too claimed to be Neal's widow, and she tendered many legal and equitable defenses by her pleading. She attached to her answer certified copies of probate proceedings from Edwards County, showing her to be the duly qualified and acting independent executrix of Neal's estate. Vivian's amended pleadings also contained a cross-action against Bessie, two of the original defendants, and a third party complaint against one Hearnsberger. She alleged that Bessie and certain of the other defendants were wrongfully and illegally in possession of thousands of acres of land, most of which was situated in Edwards County, in addition to that described in Bessie's pleading which was located in Uvalde County; that said cross-defendants were abusing said lands by over-grazing the same to her irreparable injury and damage for which she had no clear, complete, and adequate remedy at law, etc. Further allegations were to the effect that Bessie, et al, were about to make and enter into hunting leases with Hearnsberger upon some of the lands, but the location thereof is not set out with particularity.

In her cross-action, Vivian sought appropriate orders requiring the cross-defendants 'to cease and desist placing livestock on such premises, and a mandatory injunction * * * to remove all of their livestock * * * (and) from making * * * any commercial hunting lease or leases with Walter Hearnsberger or any other person or persons.' She also sought, on final hearing, damages and 'possession of such premises,' as well as general relief.

Bessie, along with her other cross-defendants and the third-party defendant, all filed their pleas of privilege to be sued in the county of their domicile-- the Jernigan cross-defendants alleged themselves to be residents of Edwards County and Hearnsberger of Nacogdoches County. In addition, all except Hearnsberger filed elaborate pleas to the jurisdiction of the court, asserting: (a) the injunctive aspect of the case should have been returnable to Edwards County under the provisions of Article 4656, Vernon's Ann.Civ.St., which court was alleged to have the sole jurisdiction thereof; and, (b) the pendency of prior litigation begun by Vivian in Edwards County in Cause No. 2399, and a suit brought by Bessie against Vivian in Edwards County, No. 2409. The Edwards County litigation (copies of the pleadings therein being attached to the answers) was alleged to involve the same Edwards County lands mentioned in Vivian's cross-action, an identity of the parties, and of the subject matter of the pending litigation. At a later time, the cross-defendants pleaded that Vivian's cross-action was an effort to thwart the jurisdiction of the District Court of Edwards County 'in order to fraudulently try to claim venue and jurisdiction (in Uvalde County) as to each and all of the lands in Edwards County.'

Vivian filed what is denominated in our record as a 'controverting affidavit' wherein she denied that Article 1995, § 14 was applicable, and she incorporated therein her amended answer and cross-action by reference. She swore to this instrument and claimed that § 14 was inapplicable, saying:

'* * * for the reason that the parties and the cause of action as regards said lands in Edwards County and the lands in Uvalde County are identical, and further in this connection cross-plaintiff shows that this Cause, No. 9,882, was filed prior to the said suits in Edwards County, and this Court, therefore, has prior exclusive jurisdiction, and the orders and all proceedings in the subsequent suits in Edwards County are void because the District Court of Edwards County did not acquire any jurisdiction in such proceeding, and cross-plaintiff says that no exception to exclusive venue in County of one's residence provided by law exists in this cause.'

At the conclusion of the single hearing, the trial court entered one order which: (a) overruled and denied the several pleas of privilege filed by the cross-defendants and the third-party defendant; (b) overruled the jurisdictional plea based upon Article 4656, V.A.C.S.; (c) overruled the pleas to the jurisdiction because of the pendency of the Edwards County litigation; (d) continued in effect a prior restraining order issued in the Edwards County litigation which prohibited Vivian from 'disturbing the status quo with regard to possession' of Bessie or 'doing or permitting any act to be done which would in any wise affect or defeat the jurisdiction of said District Court of Edwards County' therein; (e) restraining the cross-defendants, Bessie, et al, from making any hunting leases to the third-party defendant, Hearnsberger, or any other person, and directing Vivian to make hunting leases on the Edwards County lands, but ordering her to escrow the money in a bank to abide the final decision; and, (f) denied Vivian's prayer for further injunctive relief.

Bessie gave notice of appeal as to our subdivisions (a), (b), and (e) and has perfected an appeal as to (a) and (e).

Although we have an extremely lengthy transcript in which the pleadings in three separate district court suits in two counties are intermingled indiscriminately as exhibits, etc., there was very little oral evidence introduced upon the trial. The only witness who testified was the accountant who had prepared the estate tax returns which Vivian used in the administration of the estate of Neal. For whatever it was worth, he did establish that she had paid many thousands of dollars in federal taxes and was even then confronted with a deficiency assessment amounting to more than $150,000.00.

By stipulation of counsel, it was established that none of the parties, in whatever capacity they appeared, were residents of Uvalde County; that all of the land involved, except the Walcott Ranch, was situated in Edwards County; but, our record discloses that this suit filed by Bessie in Uvalde County was the first district court litigation between the parties, the two suits in Edwards County having been filed after Bessie had first invoked the jurisdiction of the District Court of Uvalde County.

This lengthy preliminary statement has been made so as to place the issues which we face into proper focus; and, at the outset, we remind all of the parties that no facet of the merits of the controversy is before us. We pause here to eliminate those issues upon which we express no opinion, namely: (a) the validity or invalidity, vel non, of the separation agreement between Bessie and Neal; (b) the nature of the claim, if any, of Bessie to the property listed by Vivian as part of Neal's estate; (c) the nature of the claim, if any, of Vivian to the property claimed to be a part of Neal's estate; (d) the scope, effect, and validity of any temporary injunction orders issued out of the District Court of Edwards County, mentioned previously in our re sume of the order entered herein; and, (e) the applicability, if it is applicable, of the provisions of Article 3716, V.A.C.S., the 'Deadman...