Kieke v. Cox
| Decision Date | 13 March 1957 |
| Docket Number | No. 13123,13123 |
| Parties | Hattie J. KIEKE et vir, Appellants, v. Doris Lee COX et al., Appellees. |
| Court | Texas Court of Appeals |
G. Woodson Morris, San Antonio, for appellants.
John M. Gilliland, Baskin, Casseb & Casseb, San Antonio, for appellees.
This is a suit by Hattie J. Kieke, joined by her husband, Edwin C. Kieke, in the 57th District Court of Bexar County, Texas, suing as next friend of Robert Cox, a person set aside a judgment in Cause No. F-33114 and William Ernest Butler, Jr., seeking to set aside a judgement in Cause No. F-33114 in the 37th District Court of Bexar County, Texas, rendered on the 14th day of June, 1946, wherein Doris Lee Butler (now Cox) obtained a divorce from William Ernest Butler, Jr. Plaintiffs' petition alleges that Doris Lee Butler's petition in said Cause No. F-33114 and her testimony therein, to the effect that she possessed the required citizenship and residence, were false, and that she thereby perpetrated a fraud upon the court. This is an independent suit to set aside that judgment.
Doris Lee and William Ernest Butler, Jr., were married in the year 1928. The marriage was terminated by the judgment above mentioned. Following the divorce Doris Lee Butler married Robert Cox and lived with him until the year 1952, when he was adjudged a person of unsound mind, since which time he had been confined in the State Hospital at San Antonio, Texas. To that union was born one child, Deborah Ann Cox. It is undisputed that Robert Cox is a person of unsound mind, that Doris Lee Cox is his guardian, and as such is drawing compensation from the Veterans' Administration. It is also undisputed that, so far as this case is concerned, the rights of Doris Lee Cox and her ward, Robert Cox, are adverse, and that suit can be maintained by his mother, the plaintiff, as next friend, the real purpose of this suit being to set aside the divorce between William Ernest Butler, Jr., and Doris Lee Butler, and in turn annual the marriage between Doris Lee and Robert Cox.
Defendants, Doris Lee Cox and William Ernest Butler, Jr., each answered, and thereupon Doris Lee Cox presented a motion for summary judgment, which motion was granted and the court rendered judgment for defendants.
The question to be decided in this case is, Can the plaintiff, acting as next friend for Robert Cox, a subsequent spouse and stranger to the judgment, maintain a suit to set aside the judgment of divorce between Doris Lee and William Ernest Butler, Jr.?
This precise question, as applied to a judgment of divorce, so far as we have been able to ascertain, has not been decided in Texas. However, the rules regarding suits attacking judgments generally are well established in this State. These rules, insofar as applicable to this case, are: First, a direct attack on a judgment can only be maintained by a party thereto, or by some party who has a then existing interest or right which was prejudiced thereby. Second, all parties to the judgment and all parties who would be directly and materially affected if the judgment be set aside are indispensable parties. Third, the suit must be brought in the court in which the judgment was rendered. Fourth, where the action to set aside the judgment is based upon allegations of fraud, it must be commenced within four years from the discovery of the fraud or from the time it could have been discovered.
At the outset appellants are confronted with the proposition that the judgment sought to be vacated is not void. Auccutt v. Aucutt, 122 Tex. 518, 62 S.W.2d 77, 89 A.L.R. 1198. It cannot be collaterally attacked. 25 Tex.Jur. 678, § 250.
We shall determine whether or not appellants' suit comes within the rules above outlined. In the first place, can a subsequent spouse of one of the parties to a divorce judgment, regular and final on its face, attack the same? We find that this question has not been answered by the Courts of this State, but in our sister States we find many authorities in point, holding that the subsequent spouse is a stranger to the judgment and, having no right or itnerest existing at the time of the judgment, cannot attack the same. While there are some authorities to the contrary, we think the weight of authority is that such person can not maintain the attack. 12 A.L.R.2d 717, and many cases cited and...
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$27920.00 in U.S. Currency v. State
...1965, writ ref'd n.r.e.); Bynum v. Davis, 327 S.W.2d 673, 677 (Tex. Civ. App.Houston 1959, no writ) (opinion on reh'g); Kieke v. Cox, 300 S.W.2d 309, 310 (Tex. Civ. App.San Antonio 1957, no writ); Stinnette v. Mauldin, 251 S.W.2d 186, 217 (Tex. Civ. App.Eastland 1952, writ ref'd Yingling en......
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Bynum v. Davis
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Caballero v. Vig
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Little v. Celebrezze, Civ. A. No. 4-493.
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