Talkington v. Talkington

Citation266 S.W. 835
Decision Date13 December 1924
Docket Number(No. 9201.)
CourtCourt of Appeals of Texas

Appeal from District Court, Dallas County; Towne Young, Judge.

Suit for divorce by Mrs. M. A. Talkington against J. W. Talkington, in which, after death of defendant, plaintiff had decree of divorce set aside. From judgment granting motion amicus curiæ of the Dallas Railway Company and reinstating decree of divorce, plaintiff appeals. Appeal dismissed for want of jurisdiction.

John White and M. M. Parks, both of Dallas, for appellant.

Beall, Wortham, Rollins, Burford & Ryburn, of Dallas, amicus curiæ.


This appeal is perfected on the granting by the trial court of a motion amicus curiæ of the Dallas Railway Company, filed in the above-styled cause, suggesting that an error had been committed in said cause by said court in setting aside the judgment entered in a trial of the case upon its merits.

The facts as shown by the record are as follows:

On August 17, 1923, the suit for divorce of Mrs. M. A. Talkington against her husband, J. W. Talkington, filed in the district court of the Fourteenth judicial district, was tried before Hon. Towne Young, judge of the special district court of Dallas county but sitting for Hon. Kenneth Foree in said Fourteenth judicial district. At the conclusion of the trial the court announced the granting of the divorce and made a docket entry to that effect. The record shows service of citation on the defendant J. W Talkington and jurisdiction of the court over the parties and power to render the judgment granting the divorce.

On the 15th of September, 1923, Mrs. M. A. Talkington, plaintiff in the divorce suit and appellant in this cause, in open court orally suggested to Judge Young, who was still sitting for Judge Foree in the Fourteenth judicial district, that since the trial of the divorce suit J. W. Talkington had died, and requested that the judgment granting the divorce be set aside. Whereupon the court entered an order reciting that the verbal application to set aside the divorce judgment had been made and considered by the court "and, it appearing to the court that the defendant died since the rendition of this decree of divorce, is of the opinion that said application should be in all things granted," and followed this with a decree setting aside the judgment for divorce rendered on the 17th day of August, 1923. An order of dismissal of the divorce proceedings was entered the same day.

At the time of the death of J. W. Talkington, he had instituted, and there was still pending, a suit against the Dallas Railway Company for damages for personal injuries. After securing the setting aside of the divorce decree, appellee made herself a party plaintiff in said pending suit by filing an amended petition therein, suggesting the death of the plaintiff and alleging that she was his wife, and, as such, entitled to become a party plaintiff in said suit and prosecute same to judgment.

The Dallas Railway Company, appellee on this appeal, filed its said amicus curiæ motion in the divorce suit, setting up the fact of the pending suit at the time of the death of J. W. Talkington, and the further fact that appellant, after securing the setting aside of the decree for divorce and the dismissal of such cause from the docket of the district court in which it was pending, had made herself a party plaintiff in said suit for damages and had alleged the same cause of action that was alleged by the deceased Talkington in his original petition and was claiming the right to do so as the surviving wife of the said Talkington, and suggested to the court that error had been committed by the action of the court in setting aside the judgment, in that at the time the judgment for divorce was rendered the court had acquired jurisdiction of the parties, that no property rights were involved, that said order was granted after the death of J. W. Talkington, and the application to set same aside did not allege that any property rights were involved, or that the court was without jurisdiction to render said judgment, or that the decree was obtained by fraud, or that any fraud was practiced upon the court, for which reasons the order setting aside the judgment of divorce was void. The order was also alleged to be void, in that, the said J. W. Talkington being dead at the time the application was made and granted, no service or notice was had upon any of his legal representatives, heirs, executors, or administrators, or any one else.

This motion amicus curiæ was heard by the court on the 6th day of October, 1923, and a judgment entered setting aside the order, which had set aside the decree for divorce and reinstated the judgment of the 17th of August, 1923, decreeing a divorce between the said parties.

The July term of court, 1923, of the...

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