Swearingen v. Swearingen

• Decision Date: 24 January 1917
• Docket Number: (No. 5715.)
• Citation: 193 S.W. 442
• Parties: SWEARINGEN v. SWEARINGEN.
• Court: Texas Court of Appeals

193 S.W. 442

SWEARINGEN v.SWEARINGEN.

(No. 5715.)

Court of Civil Appeals of Texas. San Antonio.

January 24, 1917.

On Motion for Rehearing, March 21, 1917.

Appeal from District Court, Bexar County; W. F. Ezell, Judge.

Suit by Lela Swearingen against A. J. Swearingen.Judgment for plaintiff, and defendant appeals.Affirmed.

See, also, 165 S. W. 16.

Swearingen & Ward, and John H. Bickett, Jr., all of San Antonio, for appellant.C. L. Bass and C. J. Matthews, both of San Antonio, for appellee.

MOURSUND, J.

This suit was instituted by appellee on November 5, 1913.On October 24, 1914, plaintiff filed her amended petition in the Seventy-Third district court, to which the case had been transferred from the Forty-Fifth district court on account of the disqualification of Judge Tayloe, who was made a defendant.In this petition she named the following parties as defendants: A. J. Swearingen, Samuel G. Tayloe, Sidney J. Brooks, William Cassin, P. H. Swearingen, M. H. Burris, Z. W. Cannon, and Miranda Sterling.

The petition is lengthy, and we shall only undertake to state briefly the nature thereof.Plaintiff sued to set aside a decree of divorce between herself and A. J. Swearingen, rendered by the district court of the Forty-Fifth judicial district on January 29, 1906, in a suit instituted by A. J. Swearingen, in which decree the community property was awarded to said A. J. Swearingen, pursuant to an agreement to that effect made part of the decree and signed by both parties to said suit, which was found by the court to evidence a just division of the community property.As ground for setting aside the decree in its entirety, plaintiff, Lela Swearingen, alleged that she had never been served with citation and a copy of the petition in said divorce suit by any officer, and that the return on the citation purporting to have been made by H. Mebus, deputy sheriff of El Paso county, was and is untrue, and was made by accident, fraud, or mistake of said officer.She further alleged that she was prevented from defending said suit by fraud, duress, and wrongs on the part of A. J. Swearingen; that A. J. Swearingen had conceived a scheme to get rid of her and their children, and to defraud her out of the bulk of the community estate, and that he induced her, by the statement that he wanted to move to California and invest the money there, to execute conveyances and assist in reducing said estate to cash; that after they reached Ft. Worth, on their way to California, he told her that he did not intend to live with her any longer, but persuaded her to go on to California with the children, by representing to her that he intended to permanently provide for and support her and the children; that after reaching California he wrote her to the effect that he wanted a divorce, and in the fall of 1905he wrote her, representing that he wanted to make a fair division and settlement of their community estate, and requested her, in order that this might be accomplished, to meet him at El Paso; that his real purpose was to get her into the state of Texas so that citation could be served upon her so that if she did not accept the division proposed by him she would be compelled to contest the divorce case; that she relied upon his representations and met him in El Paso, and then learned from him that he had sued her for divorce, and for that reason wanted to make a division and settlement of their community estate; that he again represented to her that he intended to permanently provide for and support her and the children in addition to what he would give her in the division, and represented that since she had been in California he had invested and lost the community estate, except about $1,200 in cash, which he offered her on condition that she would sign the instrument quoted in the divorce decree; that he had given her $600 for living expenses when she went to California and had expended $200 for railroad tickets, and he insisted that these sums should be added to the $1,200, in stating the consideration in said agreement; that he threatened not to make any division at all if she refused his offer; that the representations so made were false, but she believed and relied upon same and executed the agreement.She further alleged that she did not discover the facts showing that the judgment of divorce had been illegally obtained against her until the summer of 1913, nor the facts showing the fraudulent conduct of A. J. Swearingen by which she was induced to execute said agreement, and that she did not know until said time of any facts which would have led her, by exercising due diligence, to discover the facts that she did discover.She also alleged that she returned to California, that he did not support her, and that she had not means sufficient to investigate the facts prior to the summer of 1913, when she made a visit to Texas.She alleged that at the time she executed the agreement that when the divorce decree was granted, the community estate was worth from $25,000 to $50,000, and that since then it has increased in value to $100,000.She then described the property claimed by her to constitute such estate, and alleged that the other defendants in the suit are claiming some kind of right or interest in some of such property, and that she made them parties to the suit in order that they might defend such interest as they had.

She further pleaded a cross-action for divorce, dependent on the court setting aside the former decree.In addition she pleaded that the original answer of A. J. Swearingen alleges that he has married Miranda Sterling since said decree of divorce was rendered, and that children have been born to them, and that by reason of said fact Miranda Sterling is entitled to an interest in the property now held by him; that for such reason she has joined Miranda Sterling as a defendant, but plaintiff denies that Miranda Sterling has any interest in said property held by A. J. Swearingen.

Plaintiff's prayer is very lengthy, and its main features will be understood from the foregoing statement of her pleadings.Such portions as we may find necessary to state fully will be set out in connection with the assignments relating thereto.

On November 6, 1914, defendantA. J. Swearingen filed his original answer, in which, after pleading a general demurrer, and various special exceptions, he denied all the material allegations in plaintiff's petition; alleged that the division shown by the agreement was fair; pleaded that plaintiff's cause of action was barred by laches and by the statute of limitations of two and four years; alleged his marriage to Miranda Sterling and the birth of children to them; and pleaded estoppel to set aside the decree of divorce.

Plaintiff, on October 11, 1915, filed her first amended supplemental petition, alleging she had been a bona fide inhabitant of the state for a period of more than twelve months and a resident of Bexar county for more than six months next preceding the filing of such instrument of pleading; denied the allegations contained in defendants' pleadings; again alleged that the judgment was void, basing her contention on section 1, article 14, of the federal Constitution, and the same grounds theretofore pleaded by her.She also alleged that the sales of community property owned by A. J. Swearingen and her amounted to over $20,000, and that the community estate, at the time of the signing of the agreement, was worth over $15,000 or $20,000.

On October 11, 1915, defendant Swearingen filed a supplemental answer containing exceptions, some of which were sustained, a denial of the allegations of the supplemental petition, and allegations describing in detail the property sold by plaintiff and defendant from March to November, 1904, as well as the community debts paid; the amount of community property lost after November, 1904, and before November, 1905; also the amount of defendantA. J. Swearingen's separate property, November 21, 1905.The defendants, other than A. J. Swearingen, answered that they owned jointly an undivided half interest in a tract of land described in plaintiff's petition, the other half of which was owned by A. J. Swearingen.

The cause was submitted on special issues and a verdict returned, upon which the court rendered judgment in favor of plaintiff against A. J. Swearingen for $6,479.12, with interest thereon at the rate of 6 per cent. per annum from November 21, 1905, and that the other defendants go hence without day and recover of plaintiff all costs expended by them.

Plaintiff's pleadings were framed with the view: First, of procuring the setting aside and vacation in its entirety of the judgment of divorce rendered by the district court of Bexar county on January 29, 1906, and securing a divorce upon her petition, as well as a division of all the property held by A. J. Swearingen at the date of trial; and, second, if for any reason she could not procure the setting aside of that part of the decree divorcing the parties, then she sought to vacate and set aside that part of the decree relating to the division of property as well as the written agreement which was the basis of such part of the decree, urging as grounds therefor that fraud had been used in procuring such agreement which continued and existed at the time judgment was entered upon the faith thereof.The judgment of the court ignores the first theory, but grants relief on the second.If the decree should be entirely set aside, the questions relating to property rights would be different from those raised upon this appeal, so we will first dispose of all questions relating to the first theory.

The judgment contains no statement of the reasons relied upon by the court in deciding against plaintiff in so far as she sought to set aside the portion of the decree relating to divorce.Appellee, by cross-assignment, attacks such holding, but fails to state what the theory of the court was.A...