Pettaway v. Pettaway, 4348.

• Decision Date: 12 November 1943
• Docket Number: No. 4348.,4348.
• Citation: 177 S.W.2d 285
• Parties: PETTAWAY v. PETTAWAY.
• Court: Texas Court of Appeals

177 S.W.2d 285

PETTAWAY v. PETTAWAY.

No. 4348.

Court of Civil Appeals of Texas. El Paso.

November 12, 1943.

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

Action by Nathaniel Pettaway against Alice Pettaway for divorce. From a judgment of dismissal, on ground of plaintiff's nonresidence, plaintiff appeals.

Affirmed.

Oliver W. Johnson, of San Antonio, for appellant.

Reynolds N. Cate, of San Antonio, amicus curiae.

No counsel appeared for appellee.

PRICE, Chief Justice.

This is an appeal from a judgment of one of the district courts exercising jurisdiction in Bexar County. Plaintiff, Nathaniel Pettaway, sued Alice Pettaway for a divorce. The trial was to the court without a jury. After hearing the evidence the court dismissed the proceeding on the ground that the plaintiff was not a bona fide resident of Texas and had not resided in the State twelve months preceding the filing of his petition. Plaintiff perfected an appeal from this judgment.

There is a question of jurisdiction presented by the transcript.

The judgment recites an appearance by the plaintiff and an appearance by Mrs. H. C. Hugman, as amicus curiae, but recites no appearance by defendant. There was no appearance of record entered by the defendant shown by the transcript. No citation of the defendant by publication or otherwise appears in the record; no acceptance of service by the defendant. A copy of a document appears in the transcript in the form of a letter which is labeled "Defendant's Original Answer." This letter is signed "Alice Pettaway." It does not appear therefrom to whom same was addressed. Immediately under the signature, "Alice Pettaway," appears the following: "The foregoing letter was received from the defendant by the San Antonio Social Welfare Bureau and is filed herewith in order that the Court will have these jurisdictional facts," signed "San Antonio Social Welfare Bureau." There further appears in the transcript a copy of a paper denominated "Plea of Amicus Curiae." Mrs. H. C. Hugman signed same, and therein suggests that service on the defendant is not complete, because the defendant is a resident of the State of New York, and suggests to the court that plaintiff is not a resident of Texas and has not resided in the State of Texas for one year preceding the filing of the suit, and was not a bona fide resident of the State for twelve months preceding the filing of his said petition. The transcript fails to show whether San Antonio Social Welfare Bureau is a corporation, an unincorporated association, or an individual.

Defendant Alice Pettaway makes no appearance here.

The copy of the letter referred to above would be a substantial answer to the merits of plaintiff's asserted cause of action. However, there is no showing that such letter was ever authorized to be filed as an answer by Alice Pettaway. The appended explanation above the signature of the San Antonio Welfare Bureau would seem to indicate that same was filed by that organization (we take it that the name sufficiently indicates that it was not an individual) on its own initiative. The answer filed by Mrs. Hugman as amicus curiae is insufficient to give jurisdiction over the person of the defendant. The letter does not appear to be addressed to the court or to any officer thereof.

In order for this court to have jurisdiction to entertain an appeal, the record must show that the trial court had jurisdiction. There is no question but the trial court had potential jurisdiction over this action. In our opinion there is some doubt of the sufficiency of the transcript to show active jurisdiction. However, the clerk was charged with the filing of the papers in the case. It is perhaps to be presumed he would not have filed the letter in question unless directed by the defendant. We have therefore decided to consider the appeal on its merits.

The findings of fact of the trial court were as follows:

"The Court finds that plaintiff is a soldier, and now living in San Antonio, and that he has a wife in New York City.

"The Court finds that the plaintiff is not an actual bona fide inhabitant of the State and not a resident of this County, within the contemplation and purview of Article 4631, 1925 Revised Civil Statutes of Texas, entitling plaintiff to maintain a suit for divorce."

Appellant attacks these findings. He was the only witness testifying on the trial. In regard to the pertinent matter, he testified in substance as follows: That he was a soldier in...