Stephens v. Stephens

• Decision Date: 07 November 1884
• Docket Number: Case No. 1739.
• Citation: 62 Tex. 337
• Parties: L. E. STEPHENS v. T. W. STEPHENS.
• Court: Texas Supreme Court

62 Tex. 337

L. E. STEPHENS

v.T. W. STEPHENS.

Case No. 1739.

Supreme Court of Texas.

Nov. 7, 1884.

APPEAL from Camp. Tried below before the Hon. E. A. King, Special Judge.

Geo. T. Todd, for appellant.

No briefs of counsel for appellee on file.

STAYTON, ASSOCIATE JUSTICE.

This is an action to set aside a judgment rendered in the district court for Camp county on the 11th of May, 1882, whereby a divorce was granted to the appellee.

The petition in this cause was filed June 10, 1882, and the ground upon which the relief is sought is, that there was no service made on the appellant in the former suit in any of the methods known to the law. She also alleged that the judgment was based on a false return of service fraudulently made by her husband or his agents or attorneys acting for him in the suit. The petition also alleges that the grounds set out in the petition for divorce did not exist, and also alleges the intention of the appellee to marry again, and asked an injunction to restrain him from so doing. The injunction was granted and the writ issued June 10, 1882, and was served on the 15th, and on the 12th of the same month the appellee married another woman.

It appears that Mrs. Stephens was in Florida at the time service in the divorce suit was desired on her, and citation issued under the provisions of arts. 1230, 1234, R. S.

We find in the record a paper which appears to be a citation issued in accordance with the statute referred to, on which is a return and affidavit as required by the statute, showing that service had been duly made on Mrs. Stephens on the 13th April, 1882, by one James J. Clark.

It does not appear that this citation, return and affidavit were marked filed by the clerk of the court.

The judgment rendered on the 11th May, 1882, declared that it appeared to the court “the defendant had been duly served with personal notice as in such case by law is made and provided.”

The petition in this cause, in addition to the relief before stated, also sought a divorce on grounds therein stated.

The defendant filed general and special demurrers, which were overruled. One of the demurrers questioned the right of the appellant there to maintain an action for divorce against her husband, she not being a resident of Camp county.

The cause was tried without a jury, and it was proved by two persons, one of them being the person whose name was signed to the return on the citation, that no personal service whatever was made on the appellant.

James J. Clark testified as follows: “I am not related to either of the parties. I know such citation or petition by T. W. Stephens against Lou E. Stephens. I know of two. I delivered one to Mrs. A. P. Roberts, who promised to give it to her daughter, Mrs. L. E. Stephens; the other I returned to Allen J. Cassaday from whom I received them. Mrs. Lou E. Stephens was not served with any such paper or papers by me. I intended the return made by me on the paper returned to Allen J. Cassaday, to be that I had made service upon Mrs. A. P. Roberts at her place of abode, and so stated to Mr. Cassaday, who replied that was sufficient. Mr. Wm. Fox, a notary public, filled out the return, as I supposed, according to my dictation; as I had no spectacles with me, I could not read it. I signed it supposing it to be just as I stated.

Subsequently to the above a lawyer called here from Texas, who offered me $10 to go and serve another notice upon Mrs. Lou E. Stephens in person. He told me he was one of the attorneys of Mr. T. W. Stephens. I refused to serve them in the manner he proposed. I did take a note to Mrs. A. P. Roberts, but did not deliver any paper or papers to Mrs. L. E. Stephens.”

Mrs. A. P. Roberts, the mother of Mrs. Stephens, fully corroborated the testimony of Clark, and fixed the date at which the transaction referred to by him occurred.

An issue of fact in relation to service on Mrs. Stephens having been made, and no other citation or return shown than the one to which Clark testified, it must be held that the recital in the judgment, that personal service was made on Mrs. Stephens, was based on the return and affidavit of James J. Clark, which by his evidence and the evidence of others is shown not to have been correct.

While it is probably true that in actions for divorce, prosecuted by one whose status the state in which the cause is pending has the right through its courts to determine, service on a non-resident defendant may be made otherwise than by actual service of process on such person, within the limits of the state, and that thereby the court can acquire jurisdiction which will empower it to declare the status of its own citizen, and that such a decree, when rendered, will be binding everywhere; yet it is as essential, in such cases, to the...