Thompson v. Thompson

• Decision Date: 08 February 1951
• Docket Number: No. 2961,2961
• Citation: 238 S.W.2d 218
• Parties: THOMPSON v. THOMPSON et al.
• Court: Texas Court of Appeals

Page 218

238 S.W.2d 218

THOMPSON v. THOMPSON et al.

No. 2961.

Court of Civil Appeals of Texas, Waco.

Feb. 8, 1951.

Rehearing Denied March 22, 1951.

J. S. Simkins, Corsicana, for appellant.

J. C. Jacobs, Corsicana, for appellees.

HALE, Justice.

This appeal involves a controversy between appellant and his former wife, Mrs. Gertrude Thompson, concerning certain property rights growing out of the dissolution of their marriage relation. On July 17, 1944, the court below rendered a final judgment in cause No. 23,320 granting Mrs. Thompson a divorce from appellant and disposing of the community estate belonging to them. Each party went into possession of the property awarded to each and neither took any further action against the other with respect thereto until the early part of 1950 when appellant instituted the proceedings out of which this appeal has arisen.

On February 14, 1950, appellant filed his complaint in the divorce suit, whereby he sought to set aside that part of the former decree which disposed of the community property of the parties and to have such property partitioned. As grounds for the relief sought he alleged in substance that the disposition made of the property in the former decree was null and void; and, in the alternative, if such disposition was not void, it should be set aside because of a change of conditions since the decree was rendered. At the same time when he filed his complaint in cause No. 23,320, he also instituted an independent suit against Mrs. Thompson in cause No. 26,350, whereby he sought a partition of the community property which had been set apart to her as a homestead in the divorce decree. Mrs. Thompson answered the complaint and petition in each proceeding with a general denial and pleas of res judiciata and estoppel based upon the prior judgment in cause No. 23,320 as rendered on July 17, 1944. The issues joined by the pleadings of the parties in the two proceedings were tried together in the court below without a jury on July 31, 1950, and each resulted in judgment that appellant take nothing. The trial court then entered an order which as intended to consolidate the two proceedings for the purposes of appeal and the judgment in each is now presented in this court for review upon a consolidated record of such proceedings.

By appropriate points in his brief appellant says the trial court erred in sustaining Mrs. Thompson's pleas of res judicata, in refusing to set aside that part of the judgment rendered in cause No. 23,320 on July 17, 1944 which disposed of the community property of the parties, and in refusing to order a partition of such property at this time, because the judgment upon which the pleas of res judicata were based was and is null and void. He contends that such judgment, in so far as it purported to dispose of the property rights of the parties, was void because the effect thereof was (1) to divest him of his title in and to an undivided one-half interest in the real estate which was set apart to Mrs. Thompson for homestead purposes, contrary to the provisions contained in art. 4638 of Vernon's Tex.Civ.Stats., (2) to require him to support his children who were each over 16 years of age and (3) to require him to pay permanent alimony to his former wife.

In passing upon the question as to whether or not any portion of the judgment rendered in cause No 23,320 on July 17, 1944, was void, we must bear in mind that there is a vital distinction between the legal meaning and consequences of a void judgment and one that is only voidable. The former, in so far as it purports to be the pronouncement of a court, is not only invalid but is an absolute nullity and is in contemplation of law no judgment at all. T.J. Vol. 25, p. 692, Sec. 254 and authorities. The latter is said to be 'a judgment of a court of competent jurisdiction which appears to be valid, but which is, in fact, erroneous or irregular by reason of some defect that does not affirmatively appear upon its face or in its record. While a voidable judgment may be annulled on direct attack, launched within the time and in accordance with the methods provided by law, it is binding and conclusive in all respects until it is actually vacated or set aside.' T. J. Vol. 25, p. 696, Sec. 256 and authorities.

The record before us discloses that Mrs. Thompson, acting for herself individually and as next friend for her minor son and daughter, instituted suit in cause No. 23,320 against appellant during the latter part of 1943 for divorce and a settlement of their property rights. In her petition she alleged that the community property owned by her and appellant consisted of the homestead, being lots 1 to 10, inclusive, in Block 38, H. & T. C. Ry. Co. Addition to the City of Corsicana, (hereafter referred to as Block 38) of vendor's lien notes in the sum of $11,000, of cattle and horses, two automobiles and one truck and of other miscellaneous property known to appellant. She further alleged that appellant had sold 400 acres of their land for $18,000 which he stated to her he had lost in gambling; that he had converted into cash at least $20,000 of their property which he had secreted or dissipated in gambling and liquor; and that he was threatening to waste, secrete and conceal additional items of their community property. She sought and secured injunctive relief against him during the pendency of the suit. In response to an order of the court appellant filed in the cause a sworn inventory on January 7, 1944, wherein he listed, under oath, all of the community property which he claimed was owned by himself and his wife, with values as follows: Block 38 and all improvements situated thereon, of the market value of $10,000; cafe equipment of the market value of $150; five horses of the value of $550 three saddles of the value of $150; household furniture and utensils in the home worth about $900; several war bonds, the exact number and amounts being unknown to him, they being in the possession of Mrs. Thompson; one 1941 model Plymouth automobile worth about $1,000; one 1942 model Mercury automobile the value of which was unknown to appellant; one 1940 model Ford truck worth about $500; 1/2 of 1/8 royalty under 416 acres of land in Navarro county which has no market value; and about $300 in cash in the First National and State National Banks in Corsicana.

The issues raised by the pleadings in the cause were tried with the aid of a jury. After ...