Ruth Mаrie COMISKY, Appellant, v. Benedict J. COMISKY, III, et al., Appellee.
No. 8368.
Court of Civil Appeals of Texas, Beaumont.
Feb. 7, 1980.
The commоn law recognizes three exceptions to this rule: (1) animals that have been domesticated, see Oakley v. State, 152 Tex.Cr.R. 361, 214 S.W.2d 298, 300 (1948); The Case of the Swanns, 77 Eng.Rep. 435 (1592); (2) animals that demonstrate an intention to return, see E. A. Stephens & Co. v. Albers, 81 Colo. 488, 256 P. 15, 16 (1927), quoting 2 W. Blackstone, Commentaries 388-95; Ulery v. Jones, 81 Ill. 403 (1876); and (3) animals that, after their escape, are hotly pursued by their first owner, see Kesler v. Jones, 50 Idaho 405, 296 P. 773 (1931). See generally Annot., 52 A.L.R. 1061 (1928); 4 Am.Jur.2d Animals sec. 19 (1962); 3A C.J.S. Animals sec. 8(b, d) (1973).
It is evident, hоwever, that none of these exceptions apply, because the elk remained at large over a month, and appellant was unable to get within even the range of a tranquilizing rifle. The present case is instead closer in рoint to the Munninghoff case, supra, where the court applied the general common law rule. We therefore hold that the trial court correctly applied the common law rule, holding that the elk regained its status as an animal ferae naturae when it escaped from the game farm. Consequently, appellant‘s first point is overruled.
In his second point of error, appellant claims that the trial court erred in its finding that “the American Elk is indigenous to the North American cоntinent.” As best as we can determine from reading appellant‘s brief, appellant is complaining of the finding because he believes that the trial court should have applied the statutory definition of a game animal and should have found that the American Elk is not indigenous to this state.
It is settled law in this state that a finding of fact or conclusion of law made by the trial court that is immaterial and not at issue in the case cannot present reversible error. The question in every such cаse should be whether the material facts found by the court are sufficient to support the judgment. Andrews v. Key, 77 Tex. 35, 13 S.W. 640, 641 (1890); Warren v. Kyle, 565 S.W.2d 313, 318 (Tex.Civ.App.-Austin 1978, no writ).
We have held in this opinion that the statutory definition of a game animal is not applicable in this case. Instead, the trial court correctly аpplied the common law in the case. It did not apply the statute, and therefore the finding that the American Elk is not indigenous to the North American continent is immaterial and not at issue. Consequently, there is no reversible error. Appellant‘s second point is overruled.
The judgment of the trial court is affirmed.
Robert P. Munger, Dallas, for appellant.
Joe D. Floyd, Dallas, for appellees.
DIES, Chief Justice.
Benedict J. Comisky III, appellee, brought suit for divorce in Dallas County against Ruth Marie Comisky, appellant, alleging he (appellee) resided in New Jersey, but also alleging he was “a domiciliary of this state for the preceding six months period and a resident of this county for the preceding 90 day period.”
In his original petition, appellee prayed that appеllant be granted managing conservatorship of their two minor children, but later amended praying their custody be given him.
His wife, appellant, was served in Michigan but failed to answer on time; and, on October 18, 1978, appellee was given a default judgment which, in addition to a decree of divorce, gave appellee managing conservatorship of the children and a division of property not within Texas.
Appellant filed a motion for new trial and to set aside the judgment within thirty days of thе default judgment, which the trial court refused because “. . . your motion for time limit is denied. . .”*
“(a) If the petitioner is a resident or a domiciliary of this state at the commencement of a suit for divorce . . . , the court may exercise personal jurisdiction over the respondent . . . although the respondent is not a resident or a domiciliary of this state if:
“(1) this state is the last state in which marital cohabitation between petitioner and the respondent occurred
and the suit is commencеd within two years after the date on which cohabitation ended; or “(2) notwithstanding Subdivision (1) above, there is any basis consistent with the constitution of this state or the United States for the exercise of the personal jurisdiction.
“(b) A court acquiring jurisdiction under this section also acquires jurisdiction in a suit affecting the parent-child relation if Section 11.051 of this code is applicable.”
In Fox v. Fox, 559 S.W.2d 407 (Tex.Civ.App.-Austin 1977, no writ), petitioner was before the court by writ of error, just as appellant is in the instant case. Her husband, while serving in the Army аnd stationed at Fort Hood, Texas, brought suit for divorce against petitioner, Mrs. Fox, a resident of Ohio. She was served in Ohio but failed to answer. The district court rendered judgment in favor of Mr. Fox. The court in its decree of divorce appointed Mrs. Fox managing conservator of the children, set the child support, and divided the property of the parties, including that property located in Ohio.
Mrs. Fox was served pursuant to
In Fox v. Fox, supra at 409, the court said, “Simply stated, Petitioner did nothing in Texas and therefore, the district court wrongfully asserted in personam jurisdiction over her.”
The court then concluded (citing cases) that the district court did have jurisdiсtion to grant the divorce since it was an in rem proceeding, but that it did not have jurisdiction to award custody (managing conservatorship) of the children or divide property outside the State of Texas. Thornlow v. Thornlow, 576 S.W.2d 697 (Tex.Civ.App.-Corpus Christi 1979, no writ), in no wise dilutes Fox v. Fox, supra, because in Thornlow v. Thornlow, supra, “. . . the evidence supports the trial court‘s implied finding that the children herein were domiciled in Texas . . .” and “Second, even if the children were not domiciled in Texas, the children‘s physical presence before the court would justify the court‘s subject matter jurisdiсtion.” (576 S.W.2d 700)
In Zeisler v. Zeisler, 553 S.W.2d 927, 929 (Tex.Civ.App.-Dallas 1977, writ dism‘d w.o.j.), Chief Justice Guittard noted, “. . . the concept of extraterritorial jurisdiction over the person has been pushed further in contract and tort cases than in domestic-relations litigation.” See also, Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958), requiring “some act by which the defendant purposefully [availed himself] of the privilege of conducting activities within the forum State, thus invoking the benefits and protection of its laws.” (Quoted in Zeisler v. Zeisler, supra at 929.)
We have none of the contacts and responsibilities in the instant casе as were in Zeisler v. Zeisler (enumerated in 553 S.W.2d 929).
In our case there was no proof or allegation the marriage was celebrated in Texas; the children were not before the court, and there is no proof they had ever been in Texas. At the time of the decree they (the children) were in New Jersey, where appellee had a case on file to obtain
The trial court‘s assumption of personal jurisdiction over appellant does offend “traditional notions of fair play and substantial justice.” International Shoe Co. v. Washington, supra; O‘Brien v. Lanpar Co., supra; see also, Tyee Construction Co. v. Dulien Steel Products, Inc., 62 Wash.2d 106, 381 P.2d 245, 251 (1963) (quoted in Zeisler v. Zeisler, supra at 929).
As stated above, appellant has appealed by way of writ of error. This requires the invalidity of the judgment to be disclosed by the papers on file in the case. Eagle Life Insurance Company v. George, 473 S.W.2d 311, 313 (Tex.Civ.App. - Beaumont 1971, writ ref‘d).
In Fox v. Fox, supra, the appeal was by writ of error, and in that case, as well as the instant cаse, the citation shows the defendant to have been served out of the state. When that situation prevails, constitutional requirements must be considered, for the Constitution is the “basic law to which all others must conform,” 16 C.J.S. Constitutional Law § 3 at p. 23.
Due рrocess applies to procedure as well as substantive law. 16A C.J.S. Constitutional Law § 569(1); “Rules of procedure, as well as statutes, have no greater effect than the requirements of due process permit.” 16A C.J.S. Constitutional Law § 611 at p. 749.
In Corliss v. Smith, 560 S.W.2d 166 (Tex.Civ.App.-Tyler 1977, no writ), a former husband sought modification of a 1972 decree of divorce specifying visitation privileges with his two children who resided with their mother in Nebraska. The court held that, even though literal requirements of the long-arm statute were satisfied in that the former wifе had lived with children in Texas, and the children were conceived in Texas, the former wife was not amenable to service under
“In determining whether due process requirements are met sufficient to confer jurisdiction, the factual context surrounding the entire situation is crucial. . . . The paramount consideration in a case involving the custody of a child is what would be in the best interests and welfare of the child. When the child has acquired a domicile in a foreign jurisdiction, the domicile of thе child will be considered along with other facts in determining whether Texas courts will or should exercise jurisdiction.” (560 S.W.2d 172)
From the meager statement of facts we have in this case, there is no way the trial court, or we, could determine what is in the best interеst and welfare of these children.
The respondent did not file a special appearance to contest the jurisdiction and did not file an answer. She has now appeared to attack this judgment and is presumed to have entered her general appearance to the term of court at which the mandate shall be filed. The judgment as to child conservatorship should be reversed and remanded to the trial court for a trial on its merits. McKanna v. Edgar, 388 S.W.2d 927 (Tex.1965); Huggins v. Kinsey, 414 S.W.2d 208 (Tex.Civ.App.-San Antonio 1967, writ rеf‘d), cert. denied, 390 U.S. 950 (1968).
The judgment of the trial court granting a divorce to petitioner is affirmed. All other provisions of the judgment are reversed and remanded for trial on the merits.
AFFIRMED in part; REVERSED and REMANDED in part.
CLAYTON, Justice, concurring.
I agree with Chief Justice Dies that the trial court in this case did not have in personam jurisdictiоn over this nonresident respondent and, therefore, did not have the necessary jurisdiction to hear or enter judgment as to conservatorship of the minor children. I further agree with his disposition of this appeal.
In personam jurisdiction of a non-resident respondent in divorce proceedings is obtain
In cases involving the question of personal jurisdiction in the absence of the prerequisite conditions it has been held that there must be plеading of the jurisdictional facts. In the absence of such pleadings, personal jurisdiction may not be obtained over the non-resident defendant. See McKanna v. Edgar, supra; Gathers v. Walpace Co., Inc., 544 S.W.2d 169 (Tex.Civ.App.-Beaumont 1976, writ ref‘d n.r.e.).
To acquire personal jurisdiction over a non-resident defendant, pursuant to
The application of
KEITH, Justice, concurring.
Although I agree with the result reached by the Chief Justice, I do not subscribe to all of the reasоns assigned in support of the result. I join Justice Clayton in his analysis of the jurisdictional question presented by this record.