Snow v. Snow
| Decision Date | 02 June 1920 |
| Docket Number | (No. 6425.) |
| Citation | 223 S.W. 240 |
| Parties | SNOW v. SNOW. |
| Court | Texas Court of Appeals |
Suit for divorce by Vesta Snow against Horace Snow. Motion to set aside judgment for plaintiff was overruled, and defendant brings error. Reversed and remanded.
Norman, Shook & Gibson, of Rusk, and Hicks, Hicks, Dickson & Bobbitt, of San Antonio, and John C. Jackson, of McAllen, for plaintiff in error.
L. W. Greenly, of San Antonio, for defendant in error.
The record discloses that a petition for divorce and custody of a child was filed by Vesta Snow against Horace Snow in the Thirty-seventh district court of Bexar county, on September 11, 1919, and that a divorce was granted on October 11, 1919. On December 8, 1919, appellant filed a motion to set aside the judgment on the ground that it was granted before the expiration of 30 days after the suit was filed. The motion was overruled, and from that order this appeal was perfected.
The judgment was rendered on the thirtieth day after the suit for divorce was filed, and, it being the rule that the day of the filing and the thirtieth day will be excluded, the earliest day on which the judgment for divorce could have been legally rendered in this case was October 12, 1919. In regard to the constitutional provision as to no law taking effect, unless otherwise provided, until 90 days after the adjournment of the session of the Legislature at which it was enacted, the Supreme Court has held that, in determining when acts of the legislature shall take effect, both the day of adjournment and the ninetieth day thereafter are excluded. The court said the Constitution should be read so as to state that no law should take effect "until the expiration of ninety days after the adjournment of the Legislature." That is almost the identical language used in article 4632, Revised Statutes, now under consideration. Halbert v. San Saba Association, 89 Tex. 230, 34 S. W. 639, 49 L. R. A. 193.
The judgment having been rendered in violation of the statute is either void or voidable, and under which class it should be placed, so far as an attack directly made upon it is concerned, would be of no consequence. However, if the judgment of divorce is void, a motion to set it aside, after the term, regardless of any allegation as to what would be accomplished on another trial, would be sustained, but if the judgment is merely voidable, then, in order to have a judgment set aside after the term at which it was rendered, it must be made to appear that the defendant has a meritorious defense to the cause of action, and that a different result will probably be obtained if a new trial is granted. The motion in this case has no basis except that of the nullity of the judgment of divorce, for it rests alone on the proposition that a judgment for a divorce rendered in less than thirty days after the cause is filed is null and void. Is the judgment void, which was rendered in less than 30 days after the filing of the petition? We answer in the affirmative.
In the recent case of Beeler v. Beeler, 218 S. W. 553, it was...
To continue reading
Request your trial
-
McEwen v. Harrison
...in a district court whose proceedings were not governed by Art. 2092 and its amendments and extensions, or by Rule 330(l). Snow v. Snow, Tex.Civ.App., 223 S.W. 240, no writ history, also relied on by Texaco, was tried in a district court of Bexar County before Art. 2092 was made applicable ......
-
Eldridge v. Eldridge
...to liberally construe the provision in question. In the cases of Beeler v. Beeler (Tex. Civ. App.) 218 S. W. 553, and Snow v. Snow (Tex. Civ. App.) 223 S. W. 240, it was held that a judgment of divorce rendered in less than 30 days after the filing of the petition was void. In both of those......
-
Gillman's Marriage, In re, 8417
...Givens, 304 S.W.2d 577 (Tex.Civ.App.-Dallas 1957, no writ); Ingram v. Ingram, 249 S.W.2d 86 (Tex.Civ.App.-Galveston 1952, no writ); Snow v. Snow, 223 S.W. 240 (Tex.Civ.App.-San Antonio 1920, no writ); Beeler v. Beeler, 218 S.W. 553 (Tex.Civ.App.-El Paso 1920, no writ); and Fyke v. Fyke, 442......
-
Fyke v. Fyke
...the statutory period is void and not merely voidable. Beeler v. Beeler, 218 S.W. 553 (El Paso, Tex.Civ.App., 1920, no writ hist.); Snow v. Snow, 223 S.W. 240 (San Antonio, Tex.Civ.App., 1920, no writ hist.); Ingram v. Ingram, 249 S.W.2d 86 (Galveston, Tex.Civ.App., 1952, no writ hist.); Giv......