Shreck v. Shreck

• Citation: 32 Tex. 578
• Parties: F. SHRECK v. ADELA SHRECK.
• Decision Date: 01 January 1870
• Court: Supreme Court of Texas

32 Tex. 578

F. SHRECK

v.ADELA SHRECK.

Supreme Court of Texas.

1870.

1. The marriage contract, being sui generis, may be regarded as an exception to the general principle that in judicial action on contracts the lex loci contractus will prevail.

2. A citizen of Mexico, domiciled in Mexico, married in Texas a woman whose birth-place and ante-nuptial domicile were in Texas. Immediately upon the marriage the parties took up their residence at the husband's domicile in Mexico. Some two years afterwards the wife returned to her father's residence in Cameron county, Texas, and there instituted suit for divorce against her husband, alleging excesses, cruel treatment, etc., while they cohabited in Mexico. The husband appeared and defended the suit. Held, that the Texas court had jurisdiction, and that on the finding of the jury that the allegations of the petition were true, there was no error in decreeing the divorce, notwithstanding that the same causes might not have sustained an action for divorce in a Mexican court.

3. Excesses, cruel treatment, and outrages of such character as to affect the wife directly and personally, either in mind or body, fall within the scope and purpose of our statute; and when so aggravated as to render cohabitation insupportable, are such causes as are intended by the statute to be relieved against by decree of divorce.

APPEAL from Cameron. Tried below before the Hon. E. Basse.

Suit for divorce, brought on March 13, 1869, by the appellee against her husband, the appellant.

In her original petition the plaintiff stated that she was married to the defendant on the 29th of November, 1865, in the county of Cameron, state of Texas. That since the marriage he had, on different occasions, absented himself from home, taking up his abode at hotels for days and nights in succession, and leaving petitioner destitute of means of subsistence; that he forcibly took her jewelry and sold it, applying its proceeds to his own use; that he repeatedly and publicly, as well as privately called her a Mexican whore, and declared that he wanted nothing to do with her, as she was the whore of a Mexican; that he was an habitual drunkard, and time after time had driven her from their house by threats and violence, compelling her to seek shelter with friends.

August 27th, 1869, the defendant filed a general demurrer to the petition, and a general denial of its allegations.

September 4th, 1869, plaintiff amended her petition, and alleged that on the 21st of July, 1867, she gave birth to a child, and that she was totally neglected by the defendant during her confinement; that he not only failed to provide her with a nurse and necessary medical attendance, but that when her mother came to her assistance, she was driven away by the insulting and outrageous conduct of the defendant, and on the next day a sister of the petitioner, who had then come to take care of her, was insulted by him and ordered to leave the house. That petitioner was continually threatened, abused and maltreated by him from the early part of June, 1867, to the 11th of February, 1868; during which time he would get after her with a whip, and threaten to whip her to death if she would not agree with him in his ““malappreciation” of her father and mother; which she would never do, as they had been good parents to her. That at table, on sundry occasions, he threw cups of coffee or tea at her head; and that his treatment of her becoming insupportable, she was driven by it from his house on the 11th of February, 1868, and compelled to take refuge with her father (with whom she had since remained), keeping her infant child, but receiving nothing whatever from the defendant towards their support.

No ruling on the demurrer appears in the transcript.

The following review of the evidence is taken from the brief filed for the appellee, and is a fair statement, omitting immaterial details:

One of the principal allegations of the original petition is that the defendant, upon different occasions, absented himself from home, leaving plaintiff no subsistence, so that she was compelled to pawn her wearing jewelry to obtain subsistence. Salvos Torres, a witness for plaintiff, states that about the time of the chavasco, October, 1867, Mrs. Shreck gave him her gold ring to pawn for four bits to get something to eat; that he did pawn the ring for four bits and took the money to her; she told him she wanted the four bits for that day. Another time he lent her one dollar to redeem the ring, and that he went to get provisions after pawning the ring. This testimony very plainly establishes the allegation as to one occasion upon which her wearing jewelry was pawned for a pittance to obtain food for herself.

Another allegation is that he absented himself and limited plaintiff to the expenditure of twenty-five cents per day for her subsistence.

The witness, Henry Shreck, nephew of defendant, states that he gave plaintiff one dollar per day for subsistence; supposed it was spent for the family; did not know whether any part of it was paid for servants. This was done during the absence of defendant, and by his order.

Another material allegation of the petition is, that defendant had driven plaintiff from her house on three occasions by threats and violence, and that she had been compelled to seek shelter with her friends.

Mrs. Chano, mother of plaintiff, says that she did hope that Shreck and his wife would live together in peace, until the third time that he caused her, by his ill-treatment, to leave him and his house and come home to her parents.

Passing to the amended petition, the first of its mater allegations are, that during her confinement in childbed defendant neglected and abused her; failed to provide a nurse and medical attention for her; insulted and drove her mother off when she came to the assistance of plaintiff, and made her leave the house; and when her sister Louisa was sent to take care of her, she was also insulted and abused, and ordered by defendant to leave the house, and never again cross the threshold of his premises.

These important allegations are all proved. Mrs. Chano says: About the time of Mrs. Shreck's confinement she was very much neglected; that she went to see her daughter on the day of her confinement; went to the kitchen and made broth for her, which she needed and had not had. Witness was slighted and insulted by defendant, which caused her to leave. At plaintiff's urgent request she allowed her sister Louisa to go to see her, nurse her, etc. She was also insulted and ordered to leave the house, and told never to return again, nor for her mother to do so either.

Mrs. Longorio says Mrs. Shreck was washing and ironing eight days after her child was born; fifteen days after, swept the house, because Mr. S. would not permit the servants to do it.

Mrs. Sander testifies that Mr. S. was very rude to his wife's sister, Louisa, during her confinement, telling Louisa never again to come to his house under any pretext whatever, nor for her mother to do so either. All this in presence of witness.

Mrs. Miller testifies to the same facts.

Another allegation of the amended petition is, that defendant got after plaintiff with a whip, ran her over the house, etc.

Mrs. Longorio testified that Shreck menaced her with a whip, causing her to leave his presence, and the statement leaves the inference very strong that if she had not left he would have assaulted her with it.

This witness also proves that on two occasions he raised a chair as if to strike her, but did not, as she got out of his way. Periz testifies as to one of these occasions.

Another, and the last specific charge of the amended petition is, that on one occasion at the table he threw a cup filled with coffee at the head of plaintiff. This fact is fully proved by Mrs. Longorio, who states it almost in the words of the petition.

The jury returned a verdict that the allegations of the petition were true.

Defendant moved for a new trial, which was refused, and he appealed from the decree of the court below, dissolving the bonds of matrimony.

Ballinger, Jack & Mott, for appellant. We think the seventh assignment of errors well taken. There was a demurrer to the petition, which was overruled. After hearing the testimony, the court below should have dismissed the cause for want of jurisdiction.

The petition alleges the defendant to be a resident of Matamoros, Mexico.

The appellee's mother, Mrs. Chano, testified that appellant had a good, comfortable house in Matamoros, in which he and his wife lived; that his house and place of business was in Matamoros; and that witness resided in Brownsville, Texas.

On the 11th of February, 1868, appellee left her husband's home and went to her parents in Brownsville, and filed her petition in the district court of Cameron county, March 13th, 1869.

There was no citation, and the defendant entered appearance by general demurrer and general answer. Why this was done is not explained, and unless it was to avoid the expense of service by publication and the delay attendant thereon, we are at a loss to assign a reason. But it is very clear that the parties could not give jurisdiction by consent, and unless the court had jurisdiction over the subject matter, and over the defendant, his appearane would not give it.

The testimony discloses the fact that the appellant was, and is, a resident of the republic of Mexico, and the presumption is thereby raised that he is a citizen also. There is nothing going to show that he ever was a resident or citizen of Texas, or of the United States. He married his wife at the residence of her parents in Brownsville, and took her to his home in Matamoros, Mexico, where she lived with him up to the time of her leaving him in February, 1868. They were married in November, 1865.

All of the acts complained of by the petition were alleged to have been committed at the house of appellant (which was in Mexico), and all the...