*1 901 1, T.R.C.P., provisions ministered. It live Rule be so construed (b) give S as litigant of Rule which read: advantage one an over opponent, permitting him to have “Objective prop- 1: Rules. The Rule when, testimony without supporting objectives procedure are er civil rules injustice party, without to either the case just, equitable fair, obtain a and im- opened can be hearing on the adjudication rights partial of liti- evidence.” gants principles of sub- under established law. ob- stantive the end that unnecessary To It was appellants may great jective incorporate be attained ex- transcript of 366 pedition dispatch expense at least pages duplicates lengthy various of the may 'litigants both and to state as to the mand for admissions certain motions practicable, given these shall be pertinent pre orders not issues a liberal construction.” appeal. Hence, sented on one-half of the transcript costs of the will be assessed 5, by supra: Rule “When rules or these appellants. against the given by a notice thereunder or order Conclusions above reached required render un- an act is or allowed be court necessary a discussion time, points specified at or within presented. may, for cause shown (a) with or motion discretion without o-r of the trial court is re- notice, enlarged appli- if period order the versed and the -causeis remanded. expira- cation therefor made period originally prescribed tion of the or order; previous (b) as extended .permit motion the act be done after expiration specified period act;
good cause shown for the failure ** liberal This construction Rule 169 CHRISTOPH et al. v. SIMS. application under the 5, 1 Rules No. 14255. supra, applied, here finds in Masten Gower, Tex.Civ.App., v. 901; 165 S.W.2d Court of Civil of Texas. Dallas. Indemnity Texas Ins. Halliburton, Co. v. Oct. 1950. Tex.Civ.App., 775; 209 S.W.2d Sanders v. Rehearing Denied Nov. 1950. Harder, Tex.Sup., 206; 227 S.W.2d Gordon Williams, Tex.Civ.App., 164 S.W.2d McKinney v. Croan, 144 Tex. S.W.2d As stated Sanders v. Harder, supra S.W.2d “The [227 208]: primary purpose simplify of the rule tois by eliminating trials matters about which real controversy,
there is no may but which expensive prove.
be difficult or It was
never intended be used as a demand or defendant to admit that he
had no cause of ground action or of de fense.” And further present to the record, it is stated Williams, Gordon v. supra S.W.2d [164 “Rule No. 868]: perform
will a most useful office our jurisprudence, provided wisely ad-
§02 leading up events to said reason intoxi-
cation men- thereof he was *3 tally incapacitated to enter contract into of marriage alleged of contract marriage is null and void so supplied.) be (Emphasis declared.” (appellant The defendant here) answer- by ed presenting denial to each every allegation way petition and, by cross-action, alleged of all necessary venue facts for divorce as to her residence in’ County, Texas; Dallas State of and for the- divorce, alleged that she and defendant d»ly were legally each married to on date place and at the by alleged plaintiff; that they continued to live to- gether as husband and wife until about 1, 1933,when, date, on said plain- June tiff voluntarily her, abandoned and since said have not cohabitated to- gether has been more years than 10 —which next preceding the filing the suit cross-action.
A
decreeing incapacity
because of drunkenness to invalidate a
must be based
pleadings and
evidence that at the time of the marriage
parties
one of the
did not have sufficient
“* *
capacity
mental
to make a contract.
the rule has been laid
per
down that if a
son,
is so much intoxicated
Snow,
Floyd
R.
Earl
Parker and
W.
both
compos mentis,
as to be non
and does not
Dallas,
appellants.
for
doing,
know what
being,
time,
he is
Eades,
Eades, Jr.,
Eric
&
and E.
Eades
J.
deprived
reason, marriage
invalid,
Dallas,
Newberry,
appellee.
all
but it is not invalid if the
intoxication
'
a less
than
R.C.L.,
that stated.” 18
BOND, Chief Justice.
407;
p.
A.L.R.
seq.;
28
et
40 L.R.A.
suit,
by appellee
is a
instituted
This
R. S.
Notes;
740, 743,
Tex.Jur.,
p.
Port
annul a ceremonial
Sims to
Portwood,
wood v.
Tex.Civ.App., 109 S.W.
appellant
a cross-action
wherein
filed
for 2d 515. In De
Bowers,
Witt v.
Tex.Civ.
waived,
jury being
A
divorce.
cause of App.,
1147, 1149,
138 S.W.
the rule is stat
was submitted to the court and
action
“* * * jjis
ed:
contract
be
cannot
annulling
the marriage,
entered
hence avoided,
words,
in other
unless his drunk
denying appellant
relief on her cross- enness
ofwas
such a character that he did
action.
know true intent or meaning, which
plaintiff (appellee here) alleged
is an amelioration
early
common-law
purported
rule that
occasioned on
asserted that a contract entered
26, 1931, Matamoros,
by
or about November
person
into
an
was binding
Mexico,
Republic
“* *
time,
court,
him. As said
this
through
Neill,
he was intoxicated and
Houston,
intoxi-
Wells v.
23 Tex.
Justice
such an
Civ.App.
cated to
extent that
has no rec-
contract
In
plaintiff’s
the instant case
petition to
the marriage
annul
intoxication,
because of
pleadings as well
It
a rule of
is
interpret
allegations,
as we
merely re-
to establish
logic that the burden
as of
now,
lates his mental condition as it exists
it.
If the
who asserts
is
him
fact
“He has
pur-
no recollection of the
exist,
bur
alleges marriage to
a
pleader
ported
any
marriage or
of the events lead-
it;
prove
alleges
him
if he
is
den
ing up
marriage”;
said
exists,
a
or that
“by
reason of his intoxication and the
voidable, the
or
burden
likewise
was void
mentally incapaci-
thereof he was
prove it. Good
in a mar
upon him to
faith
tated to enter into a
marriage.”
contract of
always
presumed,
to be
ital transaction
Clearly,
allegations present
conclusions
entering into such
parties
contract
pleader
question
a
of law as to
capable of consummat
presumed to be
are
what his condition was and whether he was
ing it.
knowing
incapable of
doing.
what
was
allegations
was,
The
do not disclose that he
which
pleading
“The
at the time of the
intoxicated to
apply
apply
other cases do not
any
compos
degree of non
mentis as
de-
state,
case in this
in a divorce
fendant
reason;
prive
of all
or
him
he did
not
all,
may not answer at
although he
capacity
have sufficient mental
to make a
testimony
to hear
duty of
contract.
plaintiff is
that the
show
which would
divorce. Bostwick v. Bost
testimony,
to1a
We
turn to the
summar-
Hartman
wick,
178.”
S.W.
73 Tex.
ized on the issue of
intoxication
Hartman, Tex.Civ.App.,
OQK “Q. border, miles separated about 200 You ? right from Mexico is that separat- A. anything I City from the Matamoros. didn’t know further ing. engaged man a business was an- and in business in Falfurrias restaurant “Q. You wasn’t drunk all that time? enterprise Kingsville. He Certainly living A. not. I wasn’t drinking intoxicating was not addicted concerned, her. As far as I was wasn’t I man; * * liquors; a sober and as far married. shows, intoxicating never this record drank “Q. were not time? You with her defendant, liquors. a farm reared on A. I saw her a number of times. about six miles from Falfurrias where “Q. place That period ap- took resided, parents pub- was a teacher in the proximately years, two or three is that lic at Fal- schools. She maintained home right? Well, A. I just know ex- don’t furrias, kept company with the actly how long it was. him year lived with about a before their “Q. baby, You took care of didn’t testified, marriage; plaintiff six for about — * * * you? gave A. money. I *5 marriage. Sep- months before their On “Q. relations, had no just You sexual defendant, 26,T931, plaintiff tember and sorry felt for her? A. That’s correct. plaintiff’s automobile, in went from Fal- purpose furrias to Matamoros sole “Q. gave You her money to take care getting married. There no evidence (baby) bills, paid purpose; doctor isn’t they that went there right, you sorry and, accomplished that because there, felt for her? purpose while paid A. Correct. I the doctor bills. got legal of their going they — marriage ceremonial after mar- “Q. did you You all this because —and felt riage they plaintiff’s drove in car back sorry for A. her? Yes.” marriage, Falfurrias. Prior the' As to mental condition at the plaintiff arrangements had made in Fal- marriage, time of the that he testified they furrias for a in which house were they drinking was not when left Falfurrias they live after their marriage, in and which go Matamoros, that he inwas take up did their abode for time— some left, normal state mind when and he he, year; she said for about a for about a in remembered while Matamoros of their rate, they together month. At lived in there; leaving he drove there and back is, only that thing house abnormal automobile, says his own but does plaintiff they testified that co- did not happened remember anything that while in together; is, habit “as man and that wife Mexico, “I don’t remember much ** way,” a sexual and that he did “not intend about it remember leaving Mat- amoros”; to live with her as a husband.” Feb- On that he had no intention of ruary (about there; four marrying months after while that on the road marriage), they their living while were to- they got traveled he drunk and does not gether, gave the defendant birth to her place; remember what took he drank 'baby. plaintiff testified (not liquor accordant intoxicating they and after reason) with got did not know of he only Matamoros knew physical they got marriage, condition until after the their when back Falfurrias, they and defendant told him only and then from what the defendant were married. him, notwithstanding they told had been — living together for more than six months plaintiff After when and defendant they separated, plaintiff before the Kings- Soon thereafter moved from Kingsville Longview; there, moved to to- lived ville to as he testi- house, fied, gether plaintiff young same contrib- he consulted attorney as to uting to the marital of defendant and her his status and was advised that baby separation marriages legal until Mexican were not their 1933. In this here in plaintiff fact, country connection the he wasn’t testified: legally. absolutely In as if (defendant) they had 'been to her married believing advice, sober. consonance true, into plaintiff entered same to be record, we As view this there woman, another marriage with ceremonial mitigating or circumstance that fact ob- living, without he is with whom justify marriage; would annulment the defendant. from a divorce taining being legal, their marriage and their into ceremonial entered defendant separation for more than ten continuous 1937,— Fleming, in a Mr. marriage with years preceding filing next defend by the having advised she been cross-action, ant’s the defendant from a divorce procured he had 1936 that Therefore, a divorce. entered her; the defendant and, in ren below reversed and here a Mr. into a ceremonial denying dered to the living. she is now Christoph, with whom of the defend and in favor time of that at the is no evidence There for divorcement ant her cross-action Fleming living last Mr. ordered, their is so from marital status. It dead. against plaintiff. all costs taxed Summarizing the record evi Reversed and rendered. dence, opinion plead we are of the that the ings testimony, relating the facts and Rehearing. On just circumstances before and at the time CRAMER, Justice. are insufficient in law *6 carefully The full has plaintiff annul the the Court original holding case, reviewed our in this prompting fendant. motive The the mar assignments some view of riage is in the evident. Plaintiff and defendant rehearing. motion for- While it secretly living together for six has often bad 'been said, Speer been as Law of resulting in Marital months before Ed., Texas, Rights 597, 729, 3rd becoming There sec. (cid:127)defendant’s enceinte. determining validity “In the of a man other the no evidence that than contract, very applied improper rule plaintiff different had rela ever had contracts,” applicable from that to other as to be the author tions with the defendant relationship brought it is also true that the admitted that condition. Plaintiff he However, public about is of such concern with relations her. had sexual impressed once,” Legislature that the has so, more says: “I think he —incon while in proof stringent as the burden of ! he was intoxicated If ceivable with to its reference dissolution than Matamoros, began when 'he he was sober setting ordinary married; the cancellation or aside get he sober journey was the Garcia, In contracts. Garcia Tex. Civ. leaving Matamoros of his enough to know 606, 605, App., proceeding 144 S.W.2d automobile enough to drive and sober City. par annulment of a the from the Mexican miles to justified, agreed ties that the facts and that did not testified wife The appellate judgment the court render intoxicating liquors, did not drink en drink annulling the The court there did not drink while Mexico route to one, If, fact, said: “The situation as difficult but there; was sober. the he that in we have concluded deference to a intoxicated to plaintiff was n prohibits policy wise happened recall at the what cannot —which dissolving the marriage rela fully courts from had recover time of into, tion, except upon Falfurrias; when once entered got back when ed satisfactory evidence, clear and and never in the defendant having lived agreement parties— them, the mere procured for he had which house judgment reverse her we cannot financial having contributed sober, judgment and here render an court baby effectively trial nulling marriage of and de acts while condoned fendant, only can but affirm agreement are in the court below.” We applied there. laid down and rule requirement satisfactory
The of full and applicable pro
evidence is as to annulment
ceedings proceedings. as it is to divorce requirement 4632,
Such is found in Article 1925, 4, chap Chapter
R.C.S. under which applies
ter divorce to 'both
proceedings. requirement of full and
satisfactory proof Court of Civil as it in the Train, Tex.Civ.App.,
trial court. Train v. 212,
209 S.W.2d and cases there cited. disposition
This Court original in its
this appeal found the rule as to satisfactory proof on the annulment
phase of the case had not been satisfied. assignments
On which attack judgment granting our under divorce ten-year separation statute, the record
shows that both testified to their
separation years; more than ten fact, whole, under the record as a
undisputed. ten-year separation pro
vision our statute art. V. subdv. placed A.C.S. was therein amendment in (H.B. p. 183, ch. General
Laws, Leg., Reg. Session); 33rd Robertson,
held Robertson v. Tex. Civ.
App., (See S.W.2d there note Baylor Review, 479),
on in 1 Law No. independent ground divorce,
it is an for
subject to the defenses to other
grounds for divorce.
Finding error in our former
ment, the motion rehearing is over-
ruled.
CARLE al. et v. CARLE.
No. 4726.
Court Civil Texas. El Paso.
June 1950. Rehearing July 12,
On Motions