Wheelis v. Wheelis, 15099

• Decision Date: 06 January 1950
• Docket Number: No. 15099,15099
• Citation: 226 S.W.2d 224
• Parties: WHEELIS v. WHEELIS.
• Court: Texas Court of Appeals

Page 224

226 S.W.2d 224

WHEELIS v. WHEELIS.

No. 15099.

Court of Civil Appeals of Texas, Fort Worth.

Jan. 6, 1950.

Pollard, Lawrence & Reeves, and W. Dewey Lawrence, all of Tyler, for appellant.

George C. Kemble, of Fort Worth, for appellee.

SPEER, Justice.

In this opinion William Clifford Wheelis will be referred to as appellant and Ruth Wheelis as appellee.

This appeal is from an interlocutory temporary injunction order entered by a Tarrant County District Court upon the sworn petition of appellee, and, among other things, enjoins appellant from prosecuting a suit for divorce, child custody and injunctive relief theretofore filed by appellant in a district court of Smith County against appellee. Grounds for the injunction complained of were, by the court, based mainly upon allegations and testimony offered by appellee that the appellant had fraudulently asserted his residential qualification for divorce in the Smith County District Court case.

Upon the filing of appellee's petition in the Tarrant County District Court, a show cause order was issued to appellant and in response thereto he made a limited appearance by his counsel who filed pleas in abatement and to the jurisdiction, showing that his suit between the same parties and involving the same subject matter was then pending in the Smith County District Court. Attached as an exhibit to his pleas was a certified copy of his pending verified petition in the Smith County Court.

At the hearing from which this appeal came, appellant rightfully assumed the burden of sustaining his pleas. He offered in evidence his verified pleas in abatement and to the jurisdiction, stating at the time that the former was not offered for the purpose of showing the truth of its contents but as a means of presenting to the court his plea to the jurisdiction of the court to hear and determine the issues raised by his petition in the pending suit in Smith County. A certified copy of his petition was then offered, which shows that its filing was prior to the institution of the instant suit. The attorneys stipulated in open court that the Smith County case was pending when this one was filed and the parties in both suits are identical. In response to a request by appellant's counsel, the trial court took judicial notice of the nature of the two suits.

The court overruled the pleas of appellant, to which exceptions were reserved. Upon announcement by the court that he would hear appellee's petition for injunctive relief, counsel for appellant declined in open court to make any appearance for his client upon a hearing for a temporary injunction against him in response to the petition of appellee. After hearing testimony offered by appellee, the court granted a temporary writ. Relating to the injunction against appellant's prosecuting his suit in Smith County, the judgment recites: '* * * and the District Court of Smith County, Texas has not acquired any jurisdiction in Cause No. 17852-A because the defendant (appellant here) had not been a resident of Smith County, Texas six (6) months next preceding the filing of said suit, but has been a resident of Tarrant County, Texas and he will continue to prosecute his fruitless suit in Smith County, Texas causing plaintiff great expense and vexation in connection therewith.' The judgment orders the issuance of a writ of injunction 'pending final hearing and determination of this cause,' enjoining appellant from, among other things, prosecuting his pending suit in Smith County. This appeal was perfected from the final order of the trial court.

By two appropriate points of error appellant presents for review his contention that the Tarrant County Court should not have overruled his pleas to the jurisdiction and in abatement and granted the temporary writ of injunction upon the evidence offered by appellee.

Objection is made by appellee to our considering this appeal in so far as appellant complains of the overruling of his pleas to the jurisdiction and in abatement, for the reason, she claims, they were interlocutory orders not made appealable by statute. We overrule the objection since the appeal is from the judgment granting the temporary writ of injunction which is appealable. Article 4662, Vernon's Ann.Civ.St.; Rule 385, sub. (d), Texas Rules of Civil Procedure; Witt v. Witt, Tex.Civ.App., 205 S.W.2d 612.

It is elemental in this state that all district courts have coordinate jurisdiction of divorce cases. There are certain requisites and qualifications which plaintiff must allege in such cases as the basis for proof at the trial. Article 4631, Vernon's Ann.Civ.St. Appellant's petition in the Smith County case contains all of the requisites required by the cited statute. Appellee does not contend otherwise but her sole contention in the trial court and here is that appellant's allegations of residential qualifications in the Smith County Court case were falsely and fraudulently made in that court and for these reasons the Tarrant County Court would acquire jurisdiction of her petition and determine the questions. The trial court in this case did just that. We do not have before us a case in which allegations were made in the first filed suit that plaintiff was a resident of some county or state other than Smith County, Texas and therefore the petition could not be attacked because it disclosed its own vice, but, as previously pointed out, it was regular on its face.

Allegations of the residences of the parties in divorce cases are not treated by our courts as jurisdictional but as qualifications of the complaining party necessary to entitle him or her to a judgment of divorcement. These matters are for the determination of the court in which the relief is sought. Aucutt v. Aucutt, 122 Tex. 518, 62 S.W.2d 77; Kent v. Kent, Tex.Civ.App., 143 S.W.2d 159; Williams v. Williams, Tex.Civ.App., 146 S.W.2d 1013; Therwhanger v. Therwhanger, Tex.Civ.App., 175 S.W.2d 704.

It has been held that the allegations in a petition having relation to the subject matter in an action in which the court has jurisdiction give the court authority to determine the controversy presented, 'and that jurisdiction will be retained by the court until the defendant alleges and proves that such allegations were fraudulent, * * *' 11 Tex.Jur., p. 720, sec. 14. Our courts must necessarily be judges of their own jurisdiction by a construction of the constitution and statutes. Their judgments in this respect may be reviewed under applicable laws. In the case before us the Smith County Court has had no opportunity to pass upon its own jurisdiction of the case pending before it; nor has it had an occasion to determine whether or not appellant's residential qualification was fraudulently made; nor indeed has that court heard any evidence on the subject. The presumption prevails that that court will act properly when the question arises. When appellant's case in the Smith County Court comes on for trial the court will necessarily be called upon to determine whether or not it has jurisdiction of the parties and subject matter and will hear evidence of the truth of the...