Moore v. Moore
| Citation | 22 Tex. 237 |
| Parties | JAMES MOORE v. SARAH ANN MOORE. |
| Decision Date | 01 January 1858 |
| Court | Supreme Court of Texas |
As a general rule, the court cannot refuse a decree, if the cause of action, set forth in the petition, be sufficient in law, and the jury have found it to be true; but this rule is not applicable to suits for divorce. 25 Tex. 576.
It is the duty of the court to watch over proceedings for divorce with the strictest scrutiny, and to interpose, if necessary, to prevent abuse of the delicate and responsible power confided to it, of dissolving the marriage contract.
There must be “full and satisfactory evidence,” and the verdict of a jury, before the court can proceed to decree a divorce: it is to the mind of the court, that the statute intends the testimony shall be “full and satisfactory;” and unless it be so, it is the duty of the court to set the verdict aside, and refuse the decree.
In decreeing a divorce, the judge does not proceed, as in other cases, upon the verdict of the jury, but upon his own judgment, after the jury, by their verdict, have affirmed the truth of the material allegations of the petition.
In the absence of a statement of facts, the judgment of the court, refusing to grant a divorce, and dismissing the petition, must be presumed to be correct; although the jury, by their verdict, found “the material allegations of the petition to be true.”
After hearing the evidence, in a suit for divorce, if it be not satisfactory to the court, the correct practice seems to be, to dismiss the petition without prejudice. And this is said to be the effect of a judgment setting aside the verdict, “and that the plaintiff take nothing by his suit; and that the defendant go hence, and have and recover all costs;” although the defendant had appeared, and filed a general denial to the plaintiff's petition.
APPEAL from Dallas. Tried below before the Hon. Nat. M. Burford.
Suit by appellant for a divorce. Appellee answered by a general denial, and claim for alimony, etc. The jury found a verdict, that “the material allegations set forth in the petition are true,” whereupon the court gave judgment as follows: “Being satisfied that the allegations of the petition, and the proof, are not sufficient to authorize a dissolution of the bonds of matrimony, it is therefore ordered, adjudged, and decreed, that the verdict of the jury be set aside; that the plaintiff take nothing by his plaint; and that the defendant go hence, and have and recover of the plaintiff, all the costs in this behalf expended.”Good and McKenzie, for appellant. The only question we conceive to be determined by this court, is, whether the allegations of the petition are sufficient, in law, to entitle the appellant to a divorce; and in support of the petition, we refer the court to Hart. Dig. arts. 848-9; Byrne v. Byrne, 3 Tex. 336;Wright v. Wright, Id. 168;Sheffield v. Sheffield, Id. 79;Taylor v. Taylor, 18 Id. 574.
It is the peculiar province of the jury, in actions of this kind, to determine whether the allegations of the petition are true; and if the jury find the material allegations of the petition to be true, the court, in rendering judgment, has only to look to the petition: if the allegations of the petition, are sufficient to entitle the plaintiff to a judgment, the court should render judgment accordingly, without reference to the proof (Hart. Dig. art. 849), hence there is no necessity for sending up to the supreme court, a statement of facts.
If the court is to look both to the petition and to the facts, where is the necessity of a jury?
The verdict of the jury, in this case, is, that the material allegations of the petition are true: then, if the allegations of the petition are true, had the court any right to render judgment, non obstante veredicto, in favor of the defendant? Hart. Dig. arts. 127, 128; 1 Bouv. Law Dict. p. 678, and authorities cited; Steph. Plead. 97; Bellows v. Shannon, 2 Hill, 86.
John W. Guess, for appellee.
There is, in the record, no statement of facts; and it is manifest, therefore, that we cannot revise the judgment of the court, refusing to decree a divorce on the ground of insufficiency of proof. But it is insisted for the appellant, that the jury, having found the allegations of the petition to be true, the court could not refuse a decree, if the causes set forth were sufficient in law. This would be true, in an ordinary suit; but it is otherwise in suits for divorce. The law has sought to secure the inviolability of the marriage contract, by other safeguards than are afforded in the case of any other contract, or right of persons, however sacred it may be...
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Taylor v. Taylor
...decisions reflects that a jury trial could be had for divorce cases before the 1876 Constitution was adopted. See, e.g., Moore v. Moore, 22 Tex. 237, 240 (1858); Wright v. Wright, 3 Tex. 168, 184 (1848). Accordingly, a party to a divorce proceeding has a constitutional right to a jury trial......
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Taylor v. Taylor
...decisions reflects that a jury trial could be had for divorce cases before the 1876 Constitution was adopted. See, e.g., Moore v. Moore, 22 Tex. 237, 240 (1858); Wright v. Wright, 3 Tex. 168, 184 (1848). Accordingly, a party to a divorce proceeding has a constitutional right to a jury trial......
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Stephens v. Stephens, 2441.
...decision. In the support of his above stated contentions, the appellant cites said statute and the leading authorities (First Point: Moore v. Moore, 22 Tex. 237; DeFierros v. Fierros, Tex.Civ.App., 154 S.W. 1067; Lohmuller v. Lohmuller, Tex.Civ.App., 135 S.W. 751; Bingham v. Bingham, Tex.Ci......
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Skop v. Skop, 11862.
...Tex.Civ. App., 96 S.W.2d 548; Harrell v. Harrell, Tex.Civ.App., 261 S.W. 205; Kreiter v. Kreiter, Tex.Civ.App., 137 S.W.2d 184; Moore v. Moore, 22 Tex. 237; Paulson v. Paulson, Tex.Civ.App., 21 S.W. 778; Smith v. Smith, Tex.Civ.App., 218 S.W. It is apparent that the differences between the ......