126 S.W. 333 | Tex. App. | 1910
The suit was by the wife against the husband for divorce, on the ground of cruel treatment in abandoning her in her incurable ill health without cause, and refusing to care for her or contribute in any way to her support and maintenance, and in the alternative, if divorce be denied, for a decree enjoining her husband from exercising control over her separate property of 113 acres of land, upon the ground that the income therefrom was the only means of support left her, and the husband was interfering with her support therefrom and claiming and threatening to apply all of the same to his own personal use, leaving her wholly destitute and dependent upon the charity of others. The appellant answered by general denial, and admitting that the 113 acres was the separate property of his wife, but alleging permanent and valuable improvements made thereon with community funds. The case was tried to the court without a jury, and a decree was entered denying a divorce but awarding to appellee the possession and control of the land, charged with the payment to appellant of $30 per year as rent for his community interest, "so long as said parties may live without any decree of divorce or other adjustment of their interest in said land."
After stating the case. — There is no complaint as to the refusal to grant the divorce, but for specification of error the appellant challenges *550
the decree of the court in awarding the possession and control of the land to his wife as against him. The decree as entered, we think, was not in accordance with the relief asked for by the pleading, and failed to decree with respect to the relief asked for, and is so far erroneous as, in that respect, to require the judgment to be reversed and the case remanded for another trial. The petition, as seen, sought a divorce, and in the alternative a decree enjoining the husband from control of the wife's separate property. The trial amendment is considered, as it should be, as supplemental allegations to the original. The original petition prayed, aside from divorce, "that if, in the judgment of the court, such divorce can not be lawfully granted, then that defendant be perpetually restrained from in any manner interfering with plaintiff and with the separate property or the rents arising therefrom, but that same be set aside for the support and care of this plaintiff." Thus there were before the court two distinct proceedings. The appellee was asking relief against her husband first by divorce, and if that relief be not granted, then next by injunction against the abuse of his powers and rights as a husband in the control of her separate property to her injury. The jurisdiction of the court was invoked to grant an injunction on the alternative relief, and the District Court has jurisdiction to grant injunctions. Of course, the court had jurisdiction to try the divorce, and, if granted, to further make decree as to the adjustment of the property rights of the parties. But if the divorce on hearing be denied, then the court was without power in such suit for divorce to otherwise adjust the property rights of husband and wife than fixed by law. Upon denial of the divorce the property rights of the husband and wife must be left by the court as they stood at the time of the application for divorce, for the parties would still legally remain husband and wife. It is thus plain that, after refusal to grant a divorce, the power of the court to adjust and settle property rights of the husband and wife ended. Any decree attempting so to adjust them, as in this case, was void after refusing the divorce. But the power of the court to hear and determine the next relief sought was invoked and continued by means, as stated, of an application for injunction. The petition, we think, in respect to the matter in hand, is capable of the construction only of being an application for injunction. Its sufficiency against special exceptions is not here prejudged. The jurisdiction of the court being invoked by the application for injunction, the court had the power to hear and determine the issues necessary to decree the relief and extent of the relief. The case of Dority v. Dority,
The decree attempts to charge the proceeds of the land with value of use or rent of the husband's community. If the divorce be granted, the right of the court to adjust the property rights exists, but if the divorce be refused, then the further power of the court to adjust the property rights ends. If the community contribute to the improvements of the separate estate, the community is entitled to reimbursement by the separate estate in the proper suit. But it is only a claim against the land and not an interest in the land, and the equity or a right is not determinable against the wife when the wife seeks to enjoin the husband from controlling her separate estate.
The judgment was ordered reversed and remanded for another trial of the case.
Reversed and remanded.