Morrissey v. Jones

• Court: Texas Court of Appeals
• Writing for the Court: Fly
• Citation: Morrissey v. Jones, 24 S.W.2d 1101 (Tex. App. 1930)
• Decision Date: 22 January 1930
• Docket Number: No. 8324.,8324.
• Parties: MORRISSEY v. JONES.

24 S.W.2d 1101

MORRISSEY v. JONES.

No. 8324.

Court of Civil Appeals of Texas. San Antonio.

January 22, 1930.

Rehearing Denied February 19, 1930.

Appeal from District Court, Bexar County; Robt. W. B. Terrell, Judge.

Suit by Mrs. A. Cora Jones against Thomas Morrissey. From an order denying a plea of privilege, defendant appeals. Affirmed.

Saner, Saner & Jack, of Dallas, for appellant.

Wayne Davis, W. S. Anthony, and Chas. R. Guinn, all of San Antonio, and Brasted & Griffin, of Fort Worth, for appellee.

FLY, C. J.

This is an appeal perfected by appellant from an order denying a plea of privilege to be sued in Palo Pinto county. The plea was controverted by appellee on the grounds that on September 14, 1924, she sued appellant for and obtained a divorce from the bonds of matrimony in Bexar county, before the Seventy-Third district court. In addition to granting a divorce, the court adjudicated property rights in accordance with the terms and provisions of an agreement made and entered into by the parties, which agreement was copied into and became a part of the judgment. In the controverting plea, the original petition in the present case was copied into the controverting affidavit, which contained the following prayer:

"Wherefore, premises considered, plaintiff prays for a citation to defendant in terms of the law, that he be required to return into the court an inventory and appraisement of all properties acquired by him during marriage, and all properties acquired after marriage, that was acquired by exchange of property acquired during marriage or by the proceeds of sale of property acquired during marriage, and that the gracious writ of injunction issue restraining defendant from disposing of any part of same or contracting debt on account thereof until the further order of this Court permits him; for judgment for one-half of all the Community property and income described in this petition, for one-half of all community property of every description whatever, real and personal, now held and controlled by defendant, whether described in this petition or not, for an order of partition of said property if the same can be partitioned for judgment for the value of a full one-half interest in said community estate as it existed on the 25th day of February, 1925, together with interest at six per cent from February 25, 1925; for costs of suit and for all other relief, special and general in law and in equity, to which she may show herself justly entitled and for all of which she will ever pray."

She alleged that the fraud and deception upon the part of appellant in obtaining the agreement as to a division of the property took place in Bexar county. She did not ask in terms that the former judgment be set aside. She afterwards filed an amended petition, in which she prayed that the original judgment be set aside in so far as it sought to affect the property rights of the parties.

The pleadings in the divorce suit show that appellee herein had her residence, as required by law, in Bexar county, and appellant was properly sued in that county, and there can be no question that, in a suit to set aside that judgment or any part of it, the venue would be properly laid in Bexar county. The facts set forth in the original petition would, if proved, sustain a setting aside of the judgment so far as the property was concerned. Under the allegations, a case for setting aside the judgment was pleaded, and appellant could not by a plea of privilege avoid such suit against him in Bexar county, unless the failure to specifically pray that the judgment be set aside opened an avenue for presenting the plea.

It is a long-established rule in Texas that it is the allegations in a petition that fix the measure of relief and not the matters prayed for. As said in Milliken v. Smoot, 64 Tex. 171: "A plaintiff must recover in the right in which he sues, and upon the facts stated in his pleadings as the basis of that right, and cannot recover through a right adverse to that asserted, it matters not what the prayer of the petition may be." The vice in the original judgment fully appears in the allegations, and in the prayer...