Witt v. Witt, 14868.

• Decision Date: 24 October 1947
• Docket Number: No. 14868.,14868.
• Parties: WITT v. WITT.
• Court: Texas Court of Appeals

205 S.W.2d 612

WITT v. WITT.

No. 14868.

Court of Civil Appeals of Texas. Fort Worth.

October 24, 1947.

Appeal from District Court, Tarrant County; Frank Culver, Jr., Judge.

Action by Mrs. Elderleen Moore Witt against William Henderson Witt for divorce and for certain ancillary relief, including injunction, wherein the Fort Worth National Bank was made a party defendant in connection with the ancillary relief. From adverse judgment, order and decree, the defendant appeals.

Appeal dismissed in part, and judgment in respect to issuance of temporary writ of injunction affirmed.

Callaway, Wade & Davis, of Fort Worth, for appellant.

McNees & McNees, of Dallas, for appellee.

SPEER, Justice.

Plaintiff, Mrs. Elderleen Moore Witt, sued defendant, Major William Henderson Witt, for divorce in the District Court of Tarrant County, Texas. She prayed for certain ancillary relief, including injunction, and in this connection made the Fort Worth National Bank a party defendant.

No trial has been had on the merits in this case, but this appeal is prosecuted by defendant from certain interlocutory orders entered by the court; hence, it will be unnecessary for us to refer to more than certain parts of the respective pleadings of the parties.

Plaintiff relies for her residential qualifications upon assertions that she and the defendant were married in Wharton County, Texas, in April, 1942, and that on that date she and the defendant were inhabitants of the State of Texas; that defendant was then in the armed military forces of the United States Government and that his legal residence was in Tarrant County, Texas, he having never voluntarily changed his said place of residence after entering the military service; that thereafter the Government transferred him from one post to another and that plaintiff accompanied him as his wife and kept and maintained his living quarters at all times; that a female child was born during said marital relation and is now about four years old; that defendant's said residence having been kept and maintained by him in Tarrant County, Texas, at all times since their said marriage, and plaintiff being his wife during all of said period of time, she, too, has "therefore been for a period of twelve months an actual bona fide inhabitant of the State of Texas and has resided in said County of Tarrant for six months next preceding the filing of this suit."

Allegations are made of cruel treatment and separation of the parties in May, 1947. There were allegations of community property, some of which consists of money on deposit in the Fort Worth National Bank; that defendant was checking said funds out of that Bank and into banks outside of the State of Texas; that plaintiff and her said child are destitute and have no income from any source.

Prayer was to require the defendant to file an inventory and appraisement of the community property, for an injunction restraining the defendant from checking any funds out of the Fort Worth National Bank, and to enjoin said Bank from paying any such checks until the further orders of the court; for monthly alimony pending said suit and finally for a division of the community property, award of the custody to her of the child, provision for its future maintenance, with a decree of divorce and attorney's fees for prosecuting this suit.

The trial court entered his ex parte fiat upon said petition, granting the temporary restraining orders against the defendant, Major Witt, and the Fort Worth National Bank, ordering notice to both defendants to appear on May 30, 1947 and show cause, if any they had, why such temporary restraining order should not be made a temporary injunction at said hearing.

On May 30, 1947, the date set for said hearing, defendant Witt filed in said cause, in the order named, his two special pleas. They were: (1) a plea to the jurisdiction of the court to hear and determine the charges made in plaintiff's petition, and (2) a plea in abatement, filed subject to and without waiving his plea to the jurisdiction. In connection with his plea to the jurisdiction and plea in abatement, he alleged as grounds for each, in substance, that the court had no jurisdiction and that the suit should abate for the reasons that at the time of exhibiting her petition herein that plaintiff had not been an "actual bona fide inhabitant of the State of Texas for a period of twelve months and is not now a resident of Tarrant County, Texas and was not a resident of said County at the time of filing said suit, and had not at the time of exhibiting her petition herein resided in Tarrant County, Texas for six months next preceding the filing and exhibiting of her said petition herein."

At a hearing upon the issues thus made, defendant properly assumed the burden of proving his allegations contained in the pleas to the jurisdiction and in abatement, and at said hearing there was evidence substantially as alleged by plaintiff in her petition with reference to her residential qualifications; that there were funds deposited in the Fort Worth National Bank in the name of defendant; that he had been checking against said account and that the Bank had been paying said checks; that defendant's income was approximately $475 per month; and that she had no funds and no income and was in need of maintenance for herself and child.

The court entered his order overruling defendant's pleas to the jurisdiction and in abatement; made the former temporary restraining order a temporary injunction; awarded alimony to plaintiff against defendant for $100 per month pending the suit and further orders of the court; and ordered defendant to file with the court a sworn inventory and appraisement of the community property between himself and plaintiff.

To this judgment, order and decree, the defendant objected and excepted, gave notice of...