Rimbow v. Rimbow
| Decision Date | 29 November 1945 |
| Docket Number | No. 11748.,11748. |
| Citation | 191 S.W.2d 89 |
| Parties | RIMBOW et al. v. RIMBOW et al. |
| Court | Texas Court of Appeals |
Appeal from District Court, Harris County; Ben F. Wilson, Judge.
Proceeding by Rose Esther Rimbow in the nature of a bill of review directed against decree in divorce suit by Jesse Rimbow, Sr., against Rose Esther Rimbow and others to set aside decree for fraud on the court and for other relief, with which was consolidated interpleader suit by the Universal Life Insurance Company, Equitable Life Insurance Company, and American General Insurance Company. The American Rolling Mill Company tendered into court balance due by it to estate of Jesse Rimbow, Sr., deceased. The Huckaby Funeral Home sought to be paid its bill from insurance funds paid into court. From an adverse decree, Zeola Martin Rimbow and others appeal, opposed by Rose Esther Rimbow and others.
Affirmed.
F. S. K. Whittaker, of Houston, for appellants.
A. B. Gerland and Henry E. Kahn, both of Houston, for appellees.
This appeal, by Zeola Martin Rimbow and Huckaby Funeral Service, a firm composed of Selina J. Thomas and L. F. Huckaby, as appellants, against Rose Esther Rimbow, Jesse Rimbow, Jr., and Bessie Mae Rimbow, minors, acting by their guardian ad litem, Henry E. Kahn, Henry L. Thompson, and A. B. Gerland, as appellees, is from a judgment of the 61st District Court of Harris County in consolidated cause No. 301,101 on the docket thereof, styled Jesse Rimbow, Sr., v. Rose Esther Rimbow et al.
The gist of such decree in consolidation was to declare void, as having been procured by fraud on the court and the wife it dealt with, a prior judgment by the same court in cause No. 301101 on its docket on the 30th day of March, 1944, granting Jesse Rimbow, Sr., a divorce against appellee Rose Esther Rimbow, declaring the latter to be his surviving wife, rather than appellant Zeola Martin Rimbow, and dividing the property and assets left over at the time of Jesse Rimbow's death on the 10th day of April, 1944, between his such surviving wife Rose Esther Rimbow, and his only children and heirs, appellees Jesse Rimbow, Jr., and Bessie Mae Rimbow.
Such appealed-from judgment had been rendered by the trial court, sitting without a jury, in response to a pleading by the appellee, Rose Esther Rimbow, filed pursuant to Rule 329, Texas Rules of Civil Procedure, on the 5th day of May 1944, and amended January 5 and January 20, 1945, on allegations in the nature of an equitable proceeding, or a bill of review, the controlling recitations of which were in substance these:
It is not disputed between the litigants that all necessary parties—that is, all those having any interest in the property of Jesse Rimbow, Sr., at the date of his death, including all other parties who held assets in favor of or obligations against him—were in court and subject to its jurisdiction.
Indeed, the chief disputants both below and here, that is, the two women who each, respectively, claimed to be Jesse Rimbow, Sr.'s surviving wife at the time of his death, as well as the representatives of the minors and the insurance carriers, all agreed to the consolidation with this cause of the three other described suits on the court's docket, Nos. 306439, 305934, and 304950, in which the issues of heirship of the two minors and the existence of the insurance policies and compensation benefits inuring to Jesse Rimbow, Sr., were declared upon.
In other words, it was mutually conceded that the court had before it, in so far as appellee's declared-upon motion under Rule 329 could confer it, all persons and property rights having any interest in or any relation to his estate at the time of Jesse Rimbow, Sr.'s death; further that the justiciable questions before the court were, (1) whether or not it could then inquire into the validity of the prior divorce decree in his favor (2) determine which of the women was his wife and (3) make whatever consequent disposition of his property the facts required.
The two appellants named, inveighing here against the judgment so rendered, through fourteen (XIV) stated points for reversal, reduced their actual contentions to these three:
(1) That the court was without jurisdiction over either the party-plaintiff or the subject...
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