Thomas v. Thomas

• Citation: 277 S.W. 210
• Decision Date: 06 November 1925
• Docket Number: (No. 1278.)<SMALL><SUP>*</SUP></SMALL&gt
• Parties: THOMAS v. THOMAS.
• Court: Court of Appeals of Texas

277 S.W. 210

THOMAS v. THOMAS.

(No. 1278.)^*

Court of Civil Appeals of Texas. Beaumont.

November 6, 1925.

Rehearing Denied November 18, 1925.

Appeal from District Court, Jefferson County; J. D. Campbell, Judge.

Action for divorce by Leona Thomas against G. R. Thomas. Judgment was rendered for plaintiff, defendant's motion for new trial was overruled, and he appeals. Affirmed.

Howth, Adams & Hart, of Beaumont, for appellant.

J. M. Conley and P. D. Renfro, both of Beaumont, for appellee.

O'QUINN, J.

Suit by appellee against appellant for divorce and for partition of community property. The case was tried to a jury upon two special issues, upon the answers to which judgment was rendered for plaintiff, appellee, granting the divorce, and finding that cash in the sum of $6,687 claimed by appellant as his separate property was community property, and the judgment by agreement of the parties disposing of all the real estate and certain personal property, and appointing commissioners to partition the property between the parties. Motion for new trial was overruled, and the case is before us on appeal.

Appellant presents three assignments of error, to the consideration of which appellee vigorously objects, insisting that they are each insufficient and not in compliance with the rules.

The first assignment is:

"The judgment granting the plaintiff a divorce is not supported by the evidence, and is against the great weight and preponderance of the evidence."

The second assignment is:

"The verdict of the jury finding that the defendant had so intermingled his separate funds with the community estate that same could not be separated is against the great weight and preponderance of the evidence, and unsupported by the evidence."

The third assignment is:

"The verdict of the jury and the judgment entered thereon to the effect that $1,555 was spent on the homestead situated on the 640-acre tract of land which is the separate property of defendant and was adjudged by the court is not supported by the evidence, and is against the great weight of the evidence."

These assignments cannot be considered. They are too general, and not in compliance with the rules. They amount to no more than saying the verdict and judgment of the court are not supported by the evidence. Assignments of this kind have uniformly been held insufficient. They should state in what respect the evidence does not support the judgment or is contrary to the preponderating weight of the evidence. Rules 24, 25, 26, and 27 for Courts of Civil Appeals; Randall v. Carlisle, 59 Tex. 69; Yoe v. Montgomery, 68 Tex. 338, 4 S. W. 622; Houston v. Blythe, 71 Tex. 719, 10 S. W. 520; Wilson v. Lucas, 78 Tex. 292, 294, 14 S. W. 690; American Legion of Honor v. Rowell, 78 Tex. 677, 15 S. W. 217; Denby Motor Truck Co. v. Mears (Tex. Civ. App.) 229 S. W. 994; Bean v. Hinson (Tex. Civ. App.) 235 S. W. 327; Roberts v. Williford (Tex. Civ. App.) 242 S. W. 797; Chapman v. Reese (Tex. Civ. App.) 268 S. W. 969 (writ refused).

As this court said in Bean v. Hinson, supra:

"Under the Texas appellate practice the higher courts have uniformly refused to enter into the investigation of testimony upon an assignment of error which goes no further than to state that the verdict or judgment or matter complained of is not supported by the evidence. The assignment should state in what respect the evidence does not support the verdict or finding — the particulars in which the evidence is insufficient — and not require the court to examine the whole statement of facts to see if it cannot discover some defect or weakness which the party complaining has not pointed out or called specifically to the court's attention."

However, we have examined the record, and believe that the evidence amply supports the findings of the jury and the judgment of the court entered thereon. The judgment adjudicating the property rights of the parties was, in the main, an agreed judgment disposing by agreement of all the lands of the estate and all of the personal property except one item of $6,687, which was claimed by appellant as his separate property, and also adjudging by agreement that the amount of $1,555, which had been expended out of community funds in improving lands admitted to be the separate property of appellant, was community, and that appellee was entitled to her one-half of same. So it appears that there was only one contested item of property shown by the judgment, and that is the $6,687 above mentioned. This was the proceeds of timber sold from lands that are admittedly the separate property of appellant, and which timber was sold and the money received after appellant's marriage to appellee, and by appellant invested and reinvested from time to time. The jury found that the appellant had not kept the proceeds of the sale of this property separate and apart from the moneys received during the 18 years he and appellee lived together as husband and wife, but that he had so indiscriminately intermingled same with the numerous and various sums of money received by him arising from the combined efforts of appellant and appellee and from the earnings of the community property that it could not be distinguished from the community funds, and upon this finding the court decreed the $6,687 to be community funds.

The record abundantly shows that this man and his wife were industrious and energetic people. They were prudent in the management of their property and economical in the expenditure of their income; they had accumulated much during the 18 years of their living together. Besides farming on a considerable scale, they were engaged in stock raising, having horses, cattle, hogs, sheep, and goats in considerable numbers, making sales from time to time of the stock and wool from the sheep, as well as the produce from the farm. Appellant also bought and sold real estate at times, notes, etc., constantly using the money coming into his hands from all sources. In handling the funds he did not keep any separate account of that derived from the sale of his separate estate (the timber sale above mentioned) and that coming from their joint efforts and community property, but deposited the sums so...