Morehouse v. Morehouse

• Decision Date: 17 November 1937
• Docket Number: No. 10172.,10172.
• Citation: Morehouse v. Morehouse, 111 S.W.2d 831 (Tex. App. 1937)
• Parties: MOREHOUSE et al. v. MOREHOUSE.
• Court: Texas Court of Appeals

111 S.W.2d 831

MOREHOUSE et al. v.MOREHOUSE.

No. 10172.

Court of Civil Appeals of Texas. San Antonio.

November 17, 1937.

Rehearing Denied January 5, 1938.

Appeal from District Court, Fifty-Seventh District, Bexar County; E. F. Johnson, Judge.

Suit by Lotta K. Morehouse and others against Frances W. Morehouse, individually and as administratrix of the estate of A. B. Morehouse, deceased.From an adverse judgment, plaintiffs appeal.

Affirmed.

Dilworth & Marshall and Thomas W. Menefee, Jr., all of San Antonio, for appellants.

Boyle, Wheeler, Gresham & Terrell and H. M. Parker, all of San Antonio, for appellee.

SLATTON, Justice.

This is an appeal from a judgment resulting from a trial to the court of a suit filed by Lotta K. Morehouse, joined by her three children, against Frances W. Morehouse, individually and as administratrix of the estate of A. B. Morehouse, deceased.The purpose of the suit was to cancel a judgment of divorce entered on the 9th day of February, 1922, in the Seventy-Third district court of Bexar county, and to enjoin Frances W. Morehouse from asserting she is the widow of A. B. Morehouse, and from asserting any right, title, or interest in the estate of A. B. Morehouse deceased.

Briefly, the evidence shows that A. B. Morehouse and Lotta K. (Latch) Morehouse married at State Center, Iowa, on the 6th day of October, 1907.At the time of the marriage A. B. Morehouse was in the service of the United States Army, as a noncommissioned officer, and continued in the service until his retirement as a major.

During 1920 A. B. Morehouse began a tour of duty at Fort Sam Houston, where he remained until his retirement and until his death.In the early part of 1921Lotta K. Morehouse and children moved to San Antonio to live with the then Captain Morehouse.On account of ill health Lotta K. Morehouse and her children returned to Illinois.While Captain Morehouse and his family lived in Bexar county, they did not reside on the United States Army Reservation, and after his family left for Illinois, Captain Morehouse lived at the Elks Club, which was not on the Army Reservation.

On the 6th day of January, 1922, A. B. Morehouse filed suit for divorce in the Seventy-Third district court of Bexar county against K. L. Morehouse, and on the same date made affidavit that K. L. Morehouse was a nonresident.Subsequently citation by publication was issued and published, in accordance with law, and on the 9th day of February, 1922, after trial, the Seventy-Third district court granted the divorce.The nonresident defendant was represented by attorney appointed by the court.A brief statement of the evidence was filed among the papers of said cause.The proceedings were strictly in accordance with our statutory law.Lotta K. Morehouse did not appear or file answer in the divorce proceedings.

On or about November 18, 1925, the military authorities notified Lotta K. Morehouse that she had a legal right to set the divorce aside.Upon receipt of this advice from the military authorities, Lotta K. Morehouse wrote A. B. Morehouseshe had been advised, by a prominent attorney of San Antonio and the military authorities, that she could set the divorce proceedings aside, and if Captain Morehouse had married another woman, which apparently he had, he would be guilty of bigamy, and sought information as to how the matter could be settled out of court.Shortly after the receipt of the letter from Lotta K. Morehouse by A. B. Morehouse, an agreement was made between them whereby the said A. B. Morehouse was to pay the said Lotta K. Morehouse $100, or more, per month, which sum was paid from the latter part of 1925 until the death of A. B. Morehouse, in October, 1935.

Frances W. Morehouse became acquainted with A. B. Morehouse in October, 1923.They were married April 7, 1924, and lived together as husband and wife in Bexar county until the death of A. B. Morehouse, which occurred in October, 1935.No question was raised as to the validity of the divorce proceeding to Frances W. Morehouse, nor any one else, until about three months after the death of A. B. Morehouse, who died intestate.The entire record of the divorce proceedings was introduced in evidence.The only witnesses who testified in the case were Lotta K. Morehouse and Frances W. Morehouse.The suit being against Frances W. Morehouse as administratrix of the estate of A. B. Morehouse deceased, seeking judgment against her as such, and the only evidence offered in support of Lotta K. Morehouse having been given by her in the narration of transactions with the deceased, A. B. Morehouse, the trial court could not have rendered any other decree than one denying Lotta K. Morehouse any relief.Besteiro v. Besteiro, Tex. Com.App., 65 S.W.2d 759.However, we do not rest our decision on this ground.

AppellantLotta K. Morehouse claims the decree granting the divorce was void, because the plaintiffA. B. Morehouse was not at the time of exhibiting his petition an actual bona fide inhabitant of the State of Texas for a period of twelve months, and a resident of Bexar county for six months next preceding the filing of such suit.The record in the divorce action shows all statutory jurisdictional facts required by our statute were present.That record is sought to be impeached here by proof that A. B. Morehouse was not a resident of Texas at the time of his enlistment in the United States Service.The record in this cause shows that A. B. Morehouse came to Bexar county, Tex., more than one year before the divorce suit was filed.If at the time of his moving to Texas it was his intention to make his permanent domicile here, we are of the opinion he could do so.His living in Bexar county after retirement is some proof of that intention.The opinion in Gallagher v. Gallagher, Tex.Civ.App., 214 S.W. 516,...