73 Tex. 182 | Tex. | 1889
This is a divorce suit brought by defendant in error against plaintiff in error.
The plaintiff alleged that he was a bona fide resident of Harris county, Texas, and that the defendant was a resident of the State of Hew York. The marriage as well as the grounds for divorce were alleged to have occurred in Hew York.
The defendant was personally served with notice of the suit in Hew York, as provided by our statutes in such cases, on September 17, 1886. The term of the court to which the defendant was cited to appear began on Hovember 3, 1886. She failed to answer, and on Hovember 10, 1886, on an ex parte hearing a judgment was rendered in favor of plaintiff, divorcing him.
After the trial, but upon the same day and before the decree was entered, the attorneys of defendant appeared in court and moved the court to set aside the decree, and in connection with that motion the attorneys for both parties filed affidavits, and an answer and motion for a continuance were filed for the defendant. The court refused to set aside the judgment, and the defendant prosecutes this writ of error.
The answer of the defendant is not sworn to. It specifically denies all the allegations of plaintiff’s petition alleged as causes for granting him a divorce, except one which she justifies, and makes counter-charges of a serious character against the plaintiff—such as if true would have prevented a decree in his favor.
Among other things she alleges in her answer that the plaintiff was then and had been for twenty years a bona fide resident of the State of Hew York, and was not at the time of exhibiting his petition nor for the preceding six months a bona fide resident of the county in which he instituted his suit.
Defendant’s application for a continuance, filed in connection with her answer, was sworn to by her, and in it she states that she has a good, valid, and legal defense to plaintiff’s petition, and that she will be able and expects to disprove every material allegation in it. That the wit
That as the defendant verily believes the plaintiff has brought this-suit in the State of Texas for the express purpose of making it difficult- and harrassing for her to make her defense at such a great distance.. That the defendant expects to prove that the plaintiff is not a bona fideresident of Harris County, Texas, even now, and that he has not been such for six months next preceding the institution of this suit. That, his residence is feigned and simulated in order to bring this suit and to-impose on this court. That all the testimony on this subject can he had in the State of Hew York, but defendant has not been able to procure it in the limited time allowed her. Defendant’s affidavit to this application was made in Hew York on the 26th of October, 1886.
On the 1st day of December, 1888, defendant sued out this writ of error. The citation was returned served upon plaintiff’s attorneys of record.
It further appears from the record before us that the answer of the-defendant as well as her application for continuance were prepared in-Hew York and were in the hands of her attorneys in the city of Houston in ample time to be filed before the trial.
The affidavits made by the attorneys of the respective parties relate to-the causes for their not being filed. In the view that we take of the case we do not think it necessary or useful to comment on them further than, to say that we find nothing in them reflecting in the least degree upon, the candor or fairness of anybody concerned.
The judge of the District Court certifies as matters within his judicial cognizance that the cause was called on appearance day and passed without an order. That on Hovember 10, 1886, the court proceeded peremptorily to call the cases on the docket which were not set -for any particular day. That this cause had not been set for any particular day. That it had been for many years the practice of the court to take up-divorce cases when there was no answer filed, at any time after default-day that plaintiff’s counsel asked, if not interfering wfith the regular business of the court. That this cause was called up by plaintiff’s counsel and tried.
Defendant’s attorney stated under oath as part of the motion for new-trial, “that the case being a divorce case in which no default could be.
The errors insisted on relate to the trial of the case out of its order on the docket and the overruling of defendant's motion to set aside the decree.
Article 1278 of the Be vised Statutes provides that “all suits in which final judgments shall not have been rendered by default as hereinbefore provided shall be called for trial in the order in which they stand on the docket to which they belong, unless otherwise ordered by the court.”
Exactly how and when the order shall be made that relieves a case from this express requirement that it shall be called for trial in the order in which it stands on the docket we will not undertake to determine in this case. We do not think, however, that the act alone of trying such case when called up before its time by one of the parties is equivalent to such order. We doubt whether an established practice without a previous order of taking up a class of cases out of their order can under any circumstances be regarded as equivalent to or dispensing with such an order.
If in any case such practice can be held to dispense with the requirement of the statute we do not think it should be given that effect under the circumstances of this case.
As the probabilities are that parties who do not answer do not intend to defend, no practical inconvenience will probably result as a general rule from pursuing the practice adopted in this case.
Defendants in divorce suits, .however, are not precluded from defending by their failure to plead, and consequently have the same right to rely upon the observance of the rules and statutes governing proceedings in-courts that other litigants have.
We think too that the policy of the law that excepts divorce suits from some of the rules governing other proceedings may properly be regarded in other particulars.
The law encourages defenses of divorce suits. In such cases as the-present, where the marriage occurred abroad, where the causes for divorce are charged to have had their origin in another State, where the wife is the defendant and lives in a distant State, and is not found or served within the jurisdiction of the court, and where she appears and proposes not only to defend upon the merits (as early as the offer was made in this case) but to show that a fraud is being practiced upon the jurisdiction of the court, we think she ought to be encouraged and helped by the exercise of every legitimate power of the court. The cause is reversed and remanded.
Reversed and remanded.
Delivered March 1, 1889.