Williams v. Williams

• Decision Date: 31 January 1910
• Citation: 125 S.W. 937
• Parties: WILLIAMS v. WILLIAMS.<SMALL><SUP>†</SUP></SMALL>
• Court: Texas Court of Appeals

125 S.W. 937

WILLIAMS v. WILLIAMS.^†

Court of Civil Appeals of Texas.

January 31, 1910.

On Motion for Rehearing, February 24, 1910.

Appeal from District Court, Harris County; W. P. Hamblen, Judge.

Action by Bettie Williams against Isaac Williams. From a judgment for plaintiff and from an order directing the issuance of mandamus to compel the clerk to issue an execution for past-due alimony, and from an order appointing a receiver pending appeal, defendant appeals. Reversed on the appeal from the judgment on the merits. Appeal from order directing the issuance of an execution. Dismissed, and order appointing a receiver reversed. Motion for rehearing denied.

David F. Rowe and Woods & Graham, for appellant. Brockman, Kahn & Williams, for appellee.

PLEASANTS, C. J.

This is a suit for divorce from the bonds of matrimony and for partition of the community property of the plaintiff and the defendant brought by the appellee against the appellant. It is unnecessary in this opinion to show the contents of the pleadings further than to state that after alleging sufficient grounds for divorce plaintiff's petition describes a number of lots in the city of Houston which are alleged to be community property of plaintiff and defendant, and in addition to a prayer for divorce prays that she be adjudged the owner of one-half of said property, and that same be ordered partitioned between herself and defendant. The defendant answered the suit for divorce by general and special exceptions and general denial, and as to the ownership of the property described in the petition admitted that a portion thereof was community, but claimed that certain of said lots which he described in his answer was purchased with his separate funds and were therefore his separate property.

The property claimed by defendant as separate is described as blocks 6 and 7 in Columbia addition to the city of Houston with improvements thereon, and an undivided 2/5 interest in 3.92 acres of the H. Tierwester survey in Harris county conveyed to defendant by Joseph Nalle. He further claimed that plaintiff should be charged with the sum of $1,590 paid her by defendant as alimony pending the trial of the cause, and the further sum of $410 community funds taken by her at the time she left the defendant. The trial in the court below resulted in a verdict and judgment in favor of plaintiff for a divorce, and for one-half of all the property claimed by her to be community property, except the 3.92 acres of the H. Tierwester survey in which the jury found that defendant had a separate interest of $555. Defendant was allowed no credit, nor was plaintiff charged with any portion of the money paid her by defendant as alimony, or of that taken by her when she separated from defendant. Pending the hearing of the cause, the trial judge, on a hearing on the application of plaintiff without answer or appearance by the defendant, allowed her alimony in the sum of $75 per month and ordered defendant to pay her said amount monthly until final judgment was rendered in the cause. At the time the final judgment was rendered in the court below several installments of the alimony theretofore ordered paid to plaintiff had not been paid, and none has been since paid by the defendant. After defendant's appeal from the final judgment in the court below had been perfected by the filing of a supersedeas bond, plaintiff, by a motion filed in the original suit, applied to the district judge for a mandamus directing the district clerk to issue an execution against defendant for all of the unpaid alimony due plaintiff under the original order for alimony, before mentioned, including the installments thereof which had accrued subsequent to rendition of the final judgment in the court below. This application was granted, and the execution ordered. Defendant gave notice of appeal from this order and in due time filed a supersedeas bond on such appeal. Subsequently plaintiff filed in said original suit an application for the appointment of a receiver to take charge of all of the community property of plaintiff and defendant, and out of the revenues therefrom to pay plaintiff all of the alimony due under the previous order of the court, and such as would become due under said order pending the final termination of the original suit. This application was granted, and the receiver appointed with the powers and duties defined in said application. Defendant appealed from this order. On motion filed in this court these last two appeals were consolidated with the appeal in the original suit and all of them were submitted together. This opinion disposes of the questions presented on each of said appeals. Appellant has abandoned his appeal from the judgment granting the divorce and that portion of the judgment of the court below must be affirmed.

Under appropriate assignments of error that portion of the judgment which settles the property rights of the parties is assailed upon the following grounds: First, because the court erred in refusing to submit to the jury the issue of whether the property described as blocks 6 and 7 in Columbia addition to the city of Houston was purchased with separate funds of the defendant, and in charging the jury that said property was community property of plaintiff and defendant. Second, because the court erred in refusing to permit defendant to show the amount of alimony paid by him to the plaintiff and in failing to take any account of same in the partition of the community property. Third, because the court erred in refusing to charge plaintiff with one-half of the money taken by her from the community funds when she separated from defendant. We think each of these objections to the judgment adjudging the property rights of the parties is valid.

Upon the issue of whether blocks 6 and 7 above described were purchased with the separate funds of the defendant he testified as follows: "I came to Houston in the fall of 1893, and when I came here I had some of the money I have testified about having. When I first came here—to Houston—I hadn't broke up there at Rockdale, and I brought some money here, four or five thousand dollars. I say when I first came here before I had sold out there in Rockdale—before I sacrificed anything up there at all—I brought about $5,000—$4,000 or $5,000 in the neighborhood—with me, and bought a block of land known as No. 7, and commenced building on it; I got that land from Mr. H. F. McGregor." (Witness here introduced deed from H. F. McGregor to I. Williams for this lot, showing a consideration for said lot of $1,000.) "I had had the money out of which I took this thousand dollars to buy the property with just mentioned, in an iron safe up there in Rockdale, and it was money I had worked for and saved before I married the plaintiff. After I bought the property, the deed for which has just been put in evidence, I commenced to build houses on it, but did not invest in any more houses right away; before I went into any kind of business—earned any money here in Houston— I built six houses right in succession on that block I had bought from Mr. McGregor. I do not know what the value of those houses is now, they are not very good now, but think they are worth approximately a hundred dollars apiece. I had some of those houses built and some of them I built myself. I think I know about what the value of such houses are; they were built in the years 1893 and 1894, and those six houses are worth about $600. The next thing I done after that, here in Houston, was to buy block No. 6. The $600 with which I built those houses was a part of the $5,000 which I had brought with me to Houston, and was money I had prior to the year 1883, and prior to the time of my marriage with the plaintiff in this case. As I was going to say a while ago, when you cut...