Scott v. Scott, 12654.

• Decision Date: 24 September 1938
• Docket Number: No. 12654.,12654.
• Citation: 126 S.W.2d 525
• Parties: SCOTT et al. v. SCOTT.
• Court: Texas Court of Appeals

126 S.W.2d 525

SCOTT et al. v. SCOTT.

No. 12654.

Court of Civil Appeals of Texas. Dallas.

September 24, 1938.

Opinion Conforming to Certified Questions February 4, 1939.

Appeal from District Court, Dallas County; W. L. Thornton, Judge.

Divorce suit by Jessica Patterson Scott against Winfield Scott, Jr., wherein Elizabeth Scott was made a party defendant. From orders overruling the defendants' pleas of privilege, defendants appeal.

Decree in accordance with opinion.

Conforming to answers to certified questions in 123 S.W.2d 306.

Albert J. Baskin and Cantey, Hanger, McMahon, McKnight & Johnson, all of Fort Worth, and Hamilton, Harrell, Hamilton & Turner, of Dallas, for appellants.

Marvin B. Simpson, of Fort Worth, and Thompson, Knight, Baker, Harris & Wright, of Dallas, for appellee.

LOONEY, Justice.

This appeal is by Winfield Scott, Jr., and Mrs. Elizabeth Scott, from the judgment below overruling their pleas of privilege. On original submission, we affirmed the judgment of the trial court on May 21, 1938, in an opinion by Mr. Bond, Chief Justice. On rehearing, we adhered to our ruling as to Winfield Scott, Jr., hence overruled his motion for rehearing, but as to Mrs. Elizabeth Scott, a majority of the Court (Mr. Bond, Chief Justice, dissenting) having reached a tentative decision that the trial court erred in overruling her plea of privilege, that her motion for rehearing should be sustained, and that our former decision, as to her, be set aside, the judgment of the trial court reversed and judgment rendered in her favor, changing the venue of the cause to Tarrant County; tentative majority and minority opinions having been filed, the Court deemed it advisable to certify to the Supreme Court for adjudication, the issues of law arising in the case as to Mrs. Elizabeth Scott.

Statement of the Case

On November 12, 1937, Jessica Patterson Scott filed suit for divorce in a District Court of Dallas County against Winfield Scott, Jr., alleging jurisdictional facts as to inhabitancy of this State, and of residence in Dallas County, with sufficient facts to authorize the granting of a divorce, if sustained by proof.

After stating grounds for divorce, plaintiff (appellee) alleged that her husband, Winfield Scott, Jr., owned in his own right a vast estate, consisting of lands and personal property located in Tarrant, Johnson and Parker Counties, worth approximately $1,500,000, and during the existence of the marriage relationship he has received from his separate estate an income of approximately $15,000 per month; that the income is community property, of which she is vested with title in one-half thereof, and the separate estate is chargeable with just claims, contractual and equitable, payable on proper division of said estate; that she is without funds or means necessary for her support, is without an adequate home for her station in life, and without money to defray the expenses of this litigation; that since she has been separated from her husband she has created debts and liabilities in the sum of $10,000 for necessaries, which her husband failed and refused to furnish; that she is entitled to a home out of the rents and revenues from her husband's separate estate, alimony allowances pending the suit, and reasonable attorney's fees for the protection of her rights.

Plaintiff further alleged that, on February 20, 1935, prior to the time of their marriage, her husband executed and delivered to his mother, Elizabeth Scott, a deed of conveyance, transferring to her all of his estate, both real and personal; that the transaction was simulated, purporting to be an absolute deed, when in fact the same was only a conveyance in trust—his mother agreeing to hold the property in trust for the son, turn over all rents and revenues received, and finally reconvey the property to him. The mother, Elizabeth Scott, was made a party to the suit, plaintiff alleging that she is holding same in trust for her said son, that the rents and revenues therefrom are being retained by her as such trustee, and that she has refused to apprise plaintiff of the nature, location or extent of her said holdings.

Plaintiff's petition concludes with prayer: that pending the suit, defendant Winfield Scott, Jr., be ordered to file proper inventories of the properties owned by him, that he pay into the registry of the court, for the support of plaintiff, $1,000 per month as alimony; and that, on final hearing, defendant Elizabeth Scott be declared to be a trustee of the estate of her said son, holding the property conveyed in trust for the use and benefit of her said son, plaintiff be granted a divorce, a division of the properties, community and personal, and reasonable attorney's fee, and for fair and just marital charges, to be fixed on the separate property of Winfield Scott, Jr., in such amount as the court may determine.

In due time and in statutory form, each of the defendants filed pleas of privilege to be sued in Tarrant County, the county of their residence; plaintiff filed a controverting affidavit, incorporating therein and making a part thereof the allegations of her original petition; and, on hearing, the trial court overruled the defendants' pleas of privilege; each defendant appealed, and by agreement of all parties, the two appeals, as far as practicable, are prosecuted as one, with a single statement of facts, transcript and appeal bond; however, presenting assignments of error relating to and as effects the appellants separately.

On hearing the pleas and contest thereof, the only proof offered by plaintiff tending to show the existence of any fact or facts relied upon to confer venue of the cause on the court below as to Mrs. Scott was to the effect that she resided in Tarrant County, Texas, and that the major portion of the real estate involved is situated in that county; in other respects, plaintiff seems to have relied upon the sufficiency of the allegations of her petition to show venue, which were incorporated in and made a part of her contesting affidavit.

Opinion, on the Motion for Rehearing by Winfield Scott, Jr., and the Majority Opinion, on the Motion for Rehearing by Mrs. Elizabeth Scott.

On original submission the judgment of the trial court overruling the pleas of privilege filed by defendants, was affirmed in an opinion by Chief Justice Bond filed May 21, 1938.

On rehearing the court adheres to its decision that, as to Winfield Scott, Jr., plaintiff's allegations and proof show that venue was properly laid in the court below; hence, that the trial court did not err in overruling his plea of privilege. However, it is lengthily argued in his behalf, especially in the motion for rehearing, that the trial court erred in overruling his plea, the contention being that, Art. 4631 merely prescribes the qualifications, as to inhabitancy of the state and residence in the county where the suit is commenced, of a plaintiff filing a divorce suit, and as there is no requirement of law that the suit be tried in the county where it is commenced, and title to land being involved, that Subdivision 14 of Art. 1995, prescribing the venue of land suits, dominates, requiring that the cause be transferred for trial to a proper court of Tarrant County in which the major portion of the real estate involved is situated. This contention is based on certain decisions of our appellate courts, and courts of other states having statutes somewhat similar to the controlling statutes of this state, which will be briefly considered.

Construing Art. 2978 (now Art. 4631) designating the place for the commencement of a divorce action, Judge Reese, in Charlton v. Charlton, Tex.Civ.App., 141 S.W. 290, 291, involving a divorce granted on defendant's cross-bill, said: "that the requirements of the statute as to residence were only intended to apply to the plaintiff—in the language of the statute, `the petitioner for divorce,' the person who puts the machinery of the courts in motion in a divorce proceeding. * * *" In Root v. Root, 60 S.W.2d 525, 528, the Eastland Court of Civil Appeals said: "We see no reason why a divorce case is not subject to our venue laws the same as any other suit. * * * The jurisdictional facts as to inhabitancy of this state and of residence in a particular county have application up to the time of filing the suit and fix the place of filing, but, once those jurisdictional facts exist and the suit is filed, there is no obstacle, as we see it, to a transfer of the case to another district court for trial". The court was here speaking of a change of venue by agreement of parties, and had no reference to a change of venue under the provisions of any statute authorizing same.

In Aucutt v. Aucutt, 122 Tex. 518, 62 S.W.2d 77, 79, 89 A.L.R. 1198, a divorce had been granted the defendant on his cross-action; it was contended that, the court being without jurisdiction to grant same, the judgment was void (this was the precise situation presented in Charlton v. Charlton, Tex.Civ.App., 141 S.W. 290, 291), with reference to which Judge Critz said: "It will here be noted that the six months' residence in the county provision of article 4631 is coupled with the twelve months' residence in the state provision of the same article. In this regard we think article 4631 has effect to define the qualifications of the plaintiff or petitioner in divorce cases, and is not intended to circumscribe the jurisdiction of the district courts of this state. In this respect we call attention to the fact that article 4631 applies to all district courts alike. Its effect is to disqualify the applicant for a divorce of the right to maintain the suit unless he has resided in the state for twelve months at the time of exhibiting his petition, and in the county in which the suit is filed for six months next preceding the filing of the same". In the same case, Judge Critz also said that: "An examination of subdivision 16 of article 1995, supra,...