Appeal from District Court, Dallas County; Dick Dixon, Judge.
Suit by Clellie Elizabeth Lunt against L. W. Lunt in the nature of a bill of review to set aside a judgment of annullment, and for a judgment of divorce, and equitable division of community property, and the recovery of separate property, and, in the alternative, a judgment for damages for defendant's alleged tortious conduct toward plaintiff prior to the annullment of their marriage. From a judgment in favor of the defendant, the plaintiff appeals.
Affirmed.
The statement of the nature and result of the suit contained in the appellee's brief is adopted. It reads: "This is a suit in the nature of a Bill of Review filed on February 5, 1937, in the 95th District Court of Dallas County by Clellie Elizabeth Lunt, appellant, against L. W. Lunt, appellee, to set aside a judgment of annulment of that Court entered on April 25, 1933. In addition to a vacation of the judgment of annulment, appellant sought a judgment of divorce, an `equitable' division of community property, the recovery of her separate property, and, in the alternative, a judgment for $50,000.00 damages by reason of appellee's alleged tortuous conduct towards appellant prior to the annulment of their marriage. When the case came on for trial appellant in open court abandoned any claim for recovery of her separate property. Appellee's general demurrer to the petition was sustained," and the suit dismissed.
Appellant's petition is lengthy. The material facts shown by the petition are summarized in appellee's brief, which we adopt and quote, as follows:
"(1) That appellant and appellee were married on October 15, 1914. (2) That in 1928 appellant was undergoing her menopause, and during a `severe paroxism of her ailment' appellee filed lunacy charges against her. She was confined in jail, and on trial of the charges she was taken to the court, but was too ill to remain during the progress of the trial. She was returned to jail, was not permitted to have counsel of her choosing, and the trial was completed in her absence. `She was adjudged insane without counsel, and committed to the insane asylum at Terrell.' Appellant was returned home within about six weeks. She was still suffering from her menopause, however, and was returned to the asylum, where she was desperately ill. A few months thereafter she was discharged from the asylum and returned home, still suffering from her ailment. (3) That a short time thereafter appellee presented appellant with some instrument with reference to their property. That she was in bed when she signed it, did not read it, and does not know its import. Appellee is requested to produce the same upon a trial of the proceeding. (4) That appellee filed a second lunacy charge against appellant. Appellant was `in serious physical condition,' was unable to attend trial, was confined to her bed in jail, and was adjudged insane without being present in court, or having an opportunity to avail herself of the services of an attorney to represent her. That appellee testified on said hearing that appellant had been insane for some three or four years, and such statements were untrue and were made with the malicious design of ridding himself of appellant. That by reason of her being absent from the court room on the trial of said cause, and the fact that she was not permitted to have counsel represent her, said judgment of commitment was void and of no effect. (5) That about three years after her last commitment to Terrell, and during her confinement there, appellee brought suit for annulment in the Ninety-fifth District Court, alleging appellant was insane at the time of their marriage. That appellee on the trial of the annulment suit testified that appellant was insane at the time of their marriage. That such testimony was perjury, and that by means of such perjury testimony—`the representation to the court of facts which were untrue'—appellee on April 25, 1933, procured the judgment of annulment. That appellant was not present at such trial, neither was she represented by an attorney of her choosing. `The Court appointed a guardian ad litem, to-wit, George W. Craig, who made no effort to communicate with her or talk to or see the plaintiff to discuss the merits or demerits of the case, but with the acquiescence and consent, and at
the instance of said defendant (appellee) filed an unauthorized appearance for this plaintiff (appellant) in said cause.' (6) That the judgment of annulment attempted to make a disposition of appellant's property rights. That appellee for the purpose of deceiving the court only referred to a small portion of the property to which appellant was entitled. That the remainder of the property appellant verily believes was disposed of by said instrument which appellee induced her to sign when she was ill, and did not know the effect or contents thereof. (7) That appellant obtained an order on December 4, 1936, in the guardianship proceedings over her person and estate adjudging that she is now sane, removing the disability of insanity, releasing her from the custody of her guardian, and directing her guardian to settle his accounts and deliver up all property in his hands. (8) That despite such order her guardian, one Agnew, is withholding some of said property awarded appellant by the annulment decree consisting in twenty shares of the capital stock of Mutual Building & Loan Association, fully matured, and a subscription for fifteen shares of the capital stock of said Mutual Building & Loan Association, together with all amounts paid thereon, and all dividends accruing thereto, under some guise of right as guardian of her estate. That thereafter, for the purpose of providing for the necessities of life appellant possessed herself of certain stocks and bonds awarded her under the annulment decree. (9) That appellee married again on June 15, 1933. (10) That appellee prevented appellant from attending the trial of the annulment proceedings by having her incarcerated in the asylum at Terrell under a commitment which was void by reason of her absence during the trial of the lunacy charge, and not being permitted to avail herself of an attorney. (11) That plaintiff was not negligent in failing to attend the trial in the annulment proceedings for the reason that she was incarcerated in the asylum at Terrell, and `her liberty was restrained by the guards and attendants, and by being placed in cells, rooms and buildings that had steel bars and other appliances to prevent her escaping said buildings, being enclosed by a barricade, or steel or iron fence such that it was impossible for her to escape said institution and attend said trial.' (12) `That she had a meritorious defense to said annulment, in that she was not an insane person at the time of her marriage.' `That in truth and in fact appellant has never been insane, and appellee well knew this fact at all times,' and `that she has at all times been of sane and of sound mind.' `That in fact she was sane at said time, and has been sane at all times subsequent thereto.' (13) That `had she been permitted to attend said trial a different result would have been obtained in that she would have defeated said annulment, and her rights as a married woman would have been protected by her appearance, in that she could have established that she contributed to building up the community estate.' (14) That suit was brought within a few weeks after being released from custody, and as soon as she had compiled sufficient facts to base her action, and `that she used due diligence in seeking the information necessary for the bringing of this suit.' (15) That appellant has resided in Texas for a period in excess of twelve months, and in Dallas County for a period in excess of six months, immediately preceding the filing of her petition.
"Appellant alleges in the alternative that if she be mistaken about the validity of the judgment of annulment and the marriage was thereby properly voided, then appellee `wantonly and without probable cause, and with malice did the things hereinabove set forth against this plaintiff, and in addition thereto the defendant pretended for almost fifteen years to be the husband of this plaintiff, and deceived her, in that he held himself out to be her husband, and by such deception was permitted to live with this plaintiff as her husband, and did have almost nightly sexual intercourse with her,' and that by reason of such fraud and deceit with regard to their marital relationship, appellant has been injured and sustained damages in the sum of $50,000.00."
Plaintiff also prayed for a divorce.
Larry DeBogory and Eugene DeBogory, both of Dallas, for appellant.
Logan Ford and Burford, Ryburn, Hincks & Charlton, all of Dallas, for appellee.
HIGGINS, Justice (after...
