Harkness v. McQueen

CODY, Justice. This is an appeal by plaintiff from an order sustaining the pleas of privilege of defendants, and transferring the cause to the District Court of Montgomery County. The defendants are Martelia Harkness McQueen, plaintiff’s former wife, and her present husband, together with Mr. and Mrs. Bean. It is plaintiff’s contention that Exception 30 to the venue Statute, Art. 1995, is here controlling. Said Article and said Exception read: “No person who is an inhabitant of this State shall be sued out of the county in which he has his domicile except in the following cases: * * * “30. Special venue. — Wherever in any law authorizing or regulating any particular character of action, the venue is expressly prescribed, the suit shall be commenced in the county to which jurisdiction may be so expressly given.” Rule 329, Texas Rules of Civil Procedure, in part provides: “In cases in which judgment has been rendered on service of process by publication, where the defendant has not appeared in person or by attorney of his own selection: “(a) The court may grant a new trial upon petition of the defendant showing good cause, supported by affidavit, filed within two years after such judgment was rendered. The parties adversely interested in such judgment shall be cited as in other cases-” (With certain changes the rule is former Art. 2236). Plaintiff, who resides in Florida, has denominated his pleading which institutes the present proceeding, “his Petition and Motion for New Trial in Cause No. 322,231, styled Martelia Harkness v. Ralph Harkness in the 55th District Court of Harris [678] County, Texas.” In his said “petition and motion for new trial” plaintiff alleges: That his former wife, Martelia Harkness McQueen, instituted the divorce action, and in her petition alleged that no property was accumulated during their marriage; that service of citation was had upon him by publication, and he did not appear in person and was not represented in the action by an attorney of his own choice, etc. That in said divorce case the court found upon the false testimony of his former wife that no property either real or personal was accumulated during their marriage; that the decree was rendered December 22, 1945. Plaintiff’s pleading then alleges, among other things, that he and his former wife, on March 26, 1936, acquired five acres of land in Montgomery County, which he specifically describes. He further alleges that, unless that part of the decree which finds that no community estate existed between him and his former wife is set aside, he will be deprived of valuable property rights. Plaintiff’s petition then proceeds to set up an action in trespass to try title to the five acres of land in Montgomery County as against defendants, Martelia Harkness McQueen, and her present husband, and defendants Edgar Bean and wife (to whom the McQueens allegedly conveyed said five acres of land). The petition then, among other things, alleges that the purchase price received by the McQueens from the Beans was used to buy certain land in Freestone County, and in the alternative seeks to impress same with a trust in his favor. It should be added that plaintiff was cited by publication in his divorce action. By his prayer plaintiff asks: (1) That the Court grant a new trial in the divorce proceedings, and so much of the judgment, as finds that he and his former wife owned no community property, be set aside. (2) That plaintiff recover title to the five acres of land in Montgomery County against the defendants. (3) That plaintiff at least recover part interest in the five acres. (4) That plaintiff at least have a constructive trust impressed on the Freestone County land- The plaintiff predicates his appeal upon three points. 1. The error of the court in sustaining appellees’ pleas of privilege, since the pleadings and evidence show this was a motion for a new trial, under Rule 329, filed in the District Court of Harris County, Texas, where the original case was tried. 2. The error of the Court in considering the effect of the former decree in Cause No. 322,231, in hearing the pleas of privilege, since the Court should look solely to the pleadings to determine the nature of the case, for the purpose of determining venue, where a motion for new trial is filed, and not decide the case on the merits. 3. The error of the Court in sustaining appellees’ pleas of privilege, since said pleas did not allege that the allegations in appellant’s petition and motion for new trial were made for the fraudulent purpose of conferring venue on the District Court of Harris County. We have concluded that plaintiff’s points must be overruled. Opinion We assume for purposes of this case, without deciding it, that there was no fatal defect arising out of the fact that there are, among the Civil District Courts of Harris County, the Eleventh District Court of Harris County and the Fifty-Fifth District Court of Harris County, and that the pleading filed by plaintiff was filed in the Eleventh District Court, seeking a new trial in a cause that had been tried and judgment rendered in the Fifty-Fifth District Court. No attack is made here by plaintiff upon so much of the judgment in the divorce action as decreed the divorce. However, it was alleged in the petition for divorce that no community estate subsisted between the parties to the divorce, and the plaintiff in that action testified in support of said allegation in the same general terms as that in which the allegation was framed; and in the same general terms, the Court found or recited that there was no community estate belonging to the parties. In the present proceeding, the plaintiff asserts that he is seeking a new trial of the former proceeding. Strictly speaking, this is not so. What he is seeking is to modify the [679] judgment in so far as it recites, or finds, that there was no community estate belonging to the parties to the divorce action. It is the position of plaintiff that the statement in the divorce decree to the effect that there was no community estate accumulated during the marriage relation between plaintiff and Mrs- McQueen is res adjudicata, and must be set aside in order to enable plaintiff to litigate his rights to property which he alleges was accumulated during the marriage, including the five acres in Montgomery County. We disagree with this contention. The power vested in the courts to grant divorces is strictly regulated by statute. The power of the District Court to partition the estate of the parties to a divorce action is a special one conferred by R.C.S. Art. 4638; Kirberg v. Worrell, Tex.Com.App., 44 S.W.2d 940. Art. 4638 reads: “The Court pronouncing a decree of divorce shall also decree and order a division of the estate of the parties in such a way as the court shall deem just and right, having due regard to the rights of each party and their children, if any. Nothing herein shall be construed to compel either party tq divest himself or herself of the title to real estate-” Though formerly held otherwise, it is now well settled that the failure of the court to exercise this power, to decree a partition of the estate of the parties in decreeing the divorce, does not forfeit the right of either party to bring a partition suit subsequent to the divorce decree. See Kirberg v. Worrell, supra. It is further well settled that where the divorce decree purports to partition certain specific property, that other property, which is not brought within the scope of adjudication, may be partitioned in a subsequent partition suit. Id. The principle established by Kirberg v. Worrall is this: That where a divorce decree fails to partition specific property, a subsequent independent suit to partition same can be brought. We think the reason is clear. In addition to the fact that the power of the district court to partition in a divorce suit is a special one, there is this principle which applies with special force to real estate. Where a tract of land is taken in the name of a wife, the husband owns a vested right therein. He can be divested of such rights only by conveying same, or by a judicial proceeding which divests of his title. In order to divest of title, the land must be described sufficiently to identify it. In any case, under the authority of Kirberg v. Worrell, supra, the recitation in the divorce decree that no property was accumulated during the marriage between plaintiff and Mrs. McQueen is not res ad-judicata so as to prevent him from bringing a suit to partition land which is shown by a d'eed to have been acquired during the marital relationship between the two. And since it appears that the plaintiff is not seeking a new trial of the divorce action, but seeking to have a partition of community property which was not partitioned in the divorce action, the Court properly transferred the venue of the case in response to the plea of privilege. Judgment is affirmed-