Smith v. Smith
| Decision Date | 07 February 1952 |
| Docket Number | No. 6608,6608 |
| Parties | SMITH et al. v. SMITH. |
| Court | Texas Court of Appeals |
Barnes & Barnes, Terrell, for appellant.
Florence & Florence, Gilmer, D. S. Meredith, Jr., Longview, for appellee.
This action was instituted by appellee by next friend, her sister, against appellant to set aside a judgment for annulment and divorce entered on June 1, 1938, in cause No. 7622. Appellee alleged that on the date the judgment was entered she was a person of unsound mind and confined in the Terrell Hospital for Insane; that the action in cause No. 7622 was one for divorce which was unauthorized by the statutes of this state on the date the judgment was entered and that such judgment being without authority of law is void and should be so declared. Appellant joined the issue. Trial was to the court without a jury and resulted in a judgment cancelling and setting aside and holding for naught the judgment in cause No. 7622.
Appellant's only point asserts that the trial court erred in declaring void and setting aside the judgment in cause No. 7622, rendered on June 1, 1938.
Appellant and appellee were married on April 7, 1922. On February 14, 1925, appellee was adjudged insane and immediately confined in the State Hospital at Austin. She was discharged as recovered on September 6, 1925, and she and appellant G. C. Smith again lived together as husband and wife until November 6, 1935, when appellee was adjudged insane for a second time and placed in the State Hospital at Terrell, Texas. She has never been discharged from the Terrell Hospital. (During the marriage of appellee and appellant G. C. Smith there was born to them a son who was placed with appellant G. C. Smith by the judgment in cause No. 7622). At the time cause No. 6722 was filed in the District Court of Wood County on April 25, 1938, appellee was an inmate of the Terrell State Hospital. She was served with citation there and upon the trial of the cause on June 1, 1938, a practicing attorney at the Wood County Bar was appointed by the court as guardian ad litem to represent her. The attorney filed an answer for appellee, and was present when said cause was tried. That cause went to trial resulting in a judgment, the decretal part of which is: 'It is, therefore, ordered, adjudged and decreed by the court that the bonds of matrimony heretofore existing between plaintiff and defendant Hattie E. Smith be and the same are hereby annulled and dissolved and that plaintiff be and is hereby divorced from defendant as prayed for * * *.' It is appellant's contention that the decretal portion of the judgment set out above awards to appellant G. C. Smith an annulment and dissolution of the marriage contract as prayed for on grounds alleged in his original petition filed in cause No. 7622. Appellee's contention is that the judgment is simply one for divorce and not for annulment and therefore is a nullity.
At the time the judgment in cause No. 7622 was entered a divorce could not be obtained from a spouse who was insane. There is no dispute about this fact. It is also true here that at the time the judgment was entered in cause No. 7622, Article 4628, Vernon's Ann.Civ.St. provided that the marriage relation could be nullified if either spouse at the time the marriage contract was consummated was insane and incapable of entering into the contract. The trial court found, and we think correctly so, that plaintiff's petition in cause No. 7622 was one for annulment. The court found further that after suit was filed and citation served upon appellee in the Terrell Hospital in No. 7622, there was added to the petition in handwriting signed by appellant's attorney, paragraph 5-a, reading as follows: 'Plaintiff would show to the court that after he and defendant were married and before defendant became insane, she was guilty of such mistreatment of plaintiff, was guilty of such excesses and cruel treatment toward this plaintiff and of plaintiff as to render their further living together wholly unsupportable and such as to entitle plaintiff to a divorce as herein prayed for.' The judgment rendered in cause No. 7622 in its beginning recited the date, the appearance of the parties in person and by guardian ad litem, appointed by the court to represent the insane spouse, and states that 'the court finds that while plaintiff and defendant lived together as husband and wife and before she became insane, defendant was guilty of such excesses and cruel treatment toward plaintiff of such a character as to render their further living together insupportable and that entitled plaintiff to a divorce and to authorize an annulment of the marriage contract now existing between said parties as prayed for, that plaintiff's allegations in that regard are found to be correct.'
If the judgment entered in cause No. 7622 is capable of only one construction, when tested by the pleadings in that case, that is, one for divorce, then it...
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