Pappas v. Pappas, 14160.
| Decision Date | 10 January 1941 |
| Docket Number | No. 14160.,14160. |
| Citation | 146 S.W.2d 1115 |
| Parties | PAPPAS v. PAPPAS. |
| Court | Texas Court of Appeals |
Appeal from District Court, Tarrant County; A. J. Power, Judge; Glover Johnson, Special Judge.
Suit by Mary Pappas against Harry N. Pappas, for a divorce and to enjoin defendant from disposing of properties and for an order granting plaintiff alimony pending the hearing. From a judgment sustaining defendant's plea in abatement plaintiff appeals.
Judgment affirmed, and order attempting to keep in force a prior order for alimony and injunction reversed and vacated.
Theo Koenig and M. Kleberg, both of Fort Worth, for appellant.
Leake, Henry, Young & Golden and J. M. Hoppenstein, all of Dallas, for appellee.
Appellant, Mary Pappas, brought suit in the district court of Tarrant County, Texas, seeking a decree of divorcement from appellee, Harry N. Pappas, an injunction to prevent appellee from disposing of certain properties, and an order granting her alimony pending a hearing of the cause on its merits.
The petition is couched in language complying with the provisions of Article 4631, Revised Civil Statutes of Texas Vernon's Ann.Civ.St. art. 4631, but appellee presented a plea in abatement attacking the allegations of the petition, wherein the petitioner claims to have been an actual bona fide inhabitant of the State of Texas for twelve months, and a resident of the county in which the suit was filed for six months, next preceding the filing of the suit.
The trial court, without a hearing, granted the prayer for an injunction and ordered the appellee to pay alimony to appellant in weekly instalments of $50 each.
On January 27th, 1940, on a hearing of the plea in abatement, which was tried by the Hon. Glover Johnson, as special judge of said court, in the absence of the duly elected judge thereof, the plea was sustained and the order granting alimony to the petitioner was set aside and the cause was dismissed, and the petitioner excepted and gave notice of appeal to this court.
Thereafter, on February 16th, 1940, the petitioner, Mary Pappas, perfected her appeal by filing a cost bond that was approved by the district clerk of Tarrant County.
Thereafter, on February 20th, 1940, the duly elected district judge, presiding over said court, attempted to continue in full force and effect the order for alimony which had been made by the court in January, 1940, which order had been set aside and held for naught by the said special judge of said court, on January 27th, 1940, and the following language is used in said order:
"Accordingly it is this 20th day of February, 1940, ordered, adjudged and decreed by this court that the order of January 2nd, 1940, granting plaintiff alimony in this cause, and that the injunction herein prayed for and granted by this court on the 10th day of January, 1940, be, and the same are hereby made to continue and remain in full force and effect till the appeal taken in this cause and this lawsuit have been finally adjudicated and determined, and it is so ordered."
The question raised by the appellant is presented in several different propositions that all boil down to one contention, namely: Was the action of the trial court in sustaining the defendant's plea in abatement correct, in view of the fact that the district courts of the State of Texas are alone vested with the authority and power to grant decrees of divorcement and they alone have jurisdiction of such cases, even though it be made to appear that the petitioner in the divorce proceeding, at the time the matter is brought to the attention of the trial court, by a proper plea has not been a bona fide inhabitant of the State of Texas for twelve months next preceding the filing of the suit, and has not been a resident citizen of the county in which the suit was filed, for six months next preceding the filing of such suit?
The contention is made that the provisions of the statute above mentioned are not jurisdictional, that the trial court should have kept the cause pending until such time as the provisions of said Article 4631 (R.C.S.) have been complied with, and that such court has the right to continue in full force and effect the alimony order and the injunction order.
We are of opinion that these contentions are not sound, in the case at bar.
Fortunately, the...
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