254 S.W. 501
Tex. App.
1923

*1 Tex.) EMPLOYEES’ HAYES v. TEXAS ASS’N INS. (254 S.w.) collaterally juris- attacked for fraud diction, res as INS. ASS’N. EMPLOYERS’ HAYES v. adjudicata by party * of of Wichita Coun- Rehearing Denied 1923. June ty; Judge. Napier, E. W. 3,Oct Mary Hayes against obtaining Pleading &wkey;382(I) —Fraud Employers’ Insurance Association. general denial where under admissible vorce defendant, plaintiff for defense. of divorce decree answer sets appeals. on an in- Reversed an remanded. a wife Where Compensation policy under Workmen’s surance Burgess, Parks & Hall Geo. T. Supp. 1918, art. (Yernon’s Ann. St. Law Dallas, for seq.), her death of recover for the (cid:127)5246 —1 et Lawther, Pope Dallas, Leachman, she had been of husband and the divorced dered husband, appellee. ren- from her annulling the death after the husband’s fraudulently obtained because decree of divorce Hayes, of C. the husband general de- under evidence appellant, employ while in of Tex- by supple- nial, up such 'facts Company, April, as during 16th of petition, on Ann. St. Vernon’s mental Supp. as under special 1829, any performance matter of de- of an his art. duties regarded ex- denied unless employee, injuries fense shall be received from which he pressly admitted. shortly died thereafter. time the At Company, Texas pensation under the Com- Workmen’s <&wkey;403—Wife and servant must 2. Master (Vernon’s Supp. Ann. Law Civ. St. of husband and relationship prove prima seq.) policy in- art. n wife at 5246—1 had a et injury recover on policy time Law. surance issued Compensation association. under Workmen’s rejection claim the Hayes per day, of her earning A after un- $5.25 Board, on an in- sues Accident who Industrial policy der said Compensation policy under surance Workmen’s compen- maximum amount entitled sation if Supp. 1918, (Vernon’s art. St. Law his wife. in fact in law she was seq.) must for death of 5246—1 et Every requirement formal relationship facie that establish husband time of presen- complied been with claim them at between existed and wife injury the Industrial'Acci- tation husband. and death of Board, and, com- been refused dent <&wkey;382( Pleading I) ad- of divorce —Decree pensation, she filed this suit denial missible in evidence county, court of Wichita wife sues on insurance death policy where question policy. the terms of the alleged of her husband. sufficiency petition. raised as to brings an a wife action on insur- an W. of J. wife Compensation policy under Workmen’s ance. injury death, Supp. (Vernon’s at Ann. Civ. Law 5246—1 et husband, seq.) prior of her death time nor not at said other thereto abandoned pellee husband. admissible that she was his wife is the fact demurrer, with answered general denial. under the denial, exceptions, several amongst alleged that at other matters (cid:127)4. <&wkey;86 of other states, Evidence —Laws same conclusively presumed the time of the death when this state. laws said was not the wife- laws of another are neither Where the Hayes; prior thereto, party, proved by January 1915, 28th in Cause No. (cid:127) same be the Mary Hayes, entitled J. W. state. was rendered <&wkey;>329— granted county, dissolving Decree of divorce (cid:127)5. Divorce Garvin the bonds of of matrimony may collaterally attacked parties; between said juris- fraud upon even when Mary period had not for Ha^es judgment. dictional prior than more three A decree in another state Hayes, living may attacked for had, without him as wife and tha.t she even him, living sepa- cause, rately abandoned and was recited in the apart from the said J. W. By supplemental petition On she demurred and, .answer, generally specially to the Foreign, 6. Divorce <&wkey;329 generally way replication, denied may oollateraily when plead- (cid:127) allegations thereof. adjudicata. ed as res ,28th day..of tried on the case was foreign .The A decree of n n .jurisdiction, March, jury. rem, peremp- is a tü <§n=SlPor topic’ Key-Numbered oases other same see * Writ refused November *2 (Tex. 254 SOUTHWESTERN REPORTER .that for her to lateral in the absence that judgment? (2) Can an action be taining such decree? entitled to laws. establish jury obtained summoned, by ically tions exercised court of laws of pleaded before was Briefly set aside a wife ofl W. appellee in her the ulently. counsel, ground same court of vorce, cy homa ing last decree questions presented cess was served (1) not vin lication, affidavit, perpetrated December, heard from her since that record tion that at decree of service that appellant procured she The above-mentioned ting at that time torily and from a admitted in nonresident of Appellee [1-3] thereof, Can ground county, Okl., praying know her 'that such had through heard, aside it urged attack more than instructed and at she could introduce evidence In As stated, by publication. that that was the gone a decree of divorce and wife existed In that defendant in after the death death. order set verdict stated, suggests she that our be shown affidavit which the fraud evidence. It excluded. 2d brought north publication jurisdiction in fact was all times appellant’s Oklahoma, annulling appeared her case was. a decree of supplemental petition, upon in upon affidavit it evidence, the state whereabouts; Hayes That four- party. was had the prove Hayes a later pleadings verdict for the he out that there are court. Hayes at the time her in resident entered as such wife she Hayes been obtained fraud states that the several known it was not filed his during It It further for citation October, had been briefs, divorce, upon decree, Texas, especially had, by fraud appears that between them at mental further time.” the relation of person person, Oklahoma; instituted suit void in the 2d before the case she must did attacking which recites state Okla- in accordance is of a divorce, filing alleged compensation court of to him. The that fraudulently upon he suit for offered the prosecuted. upon not offered upon pleadings, of his rendition. were his false appellee, had and set- follows: proposi- “he did she appears penden- appears by pub- foreign legally specif in objec- such action Gar- that was was vorce was two had col- ered not the same as to not the the the vorce. the ob- in fil- not of of right in 21 W. pellant, dered it. dered ty, legation original judgment granting Bartlett tack in neither they In cuss this ror? obtained that divorce trial verdict Givens v. Givens 877; mony did eral attack by fered the proof verdict, cause is remanded. fact that' association essary was the time Because the [6] [4, 5] Texas that a divorce the divorce. our Y. S. C. jury not ground same result was Morgan made' fradulently We which tended attacking next upon the aside the The first against appellant. the opinion petition, showing Since the decree in as to the any special pleading. Appellee’s err in state On Motion for to find with reference to the In think she main contention in question. decree under it to question presented as is that therefore, Hayes October the S. art. 1829. order The was other evidence court, Morgan, introduce the laws of admitting it does. that it is not fraud denial. If was sufficient to authorize the it in inquiry specifically allege it defense as is claimed evidence introduced obtained, effect of the admissible in the through Richmond proven Oklahoma court. was in the divorce possible in validity Mrs. erred proof the court which ren- show that the decree absence of a erred in entitle excluding right then the case to attack the the Tex. Civ. decree of divorce. reversed, procured through the of Garvin Coun- Hayes The .Oklahoma were by fraud it constitute er- annulling of the court. the motion decree of decree of di- is: divorce, upon contemplated to be consid- was the either It jurisdiction, directing decree ren- such collat- directing the decree trial the decree divorce attack direct at- App. Does had Jones v. the not had not had supple settled behalf issue, J. W. testi- was The nec- dis- the the al- of- di- is Tes.) CO. v. ELECTRIC & ICE CITY OF VERNON S.W.) (254 void, specifical such business can dis- posed of in vacation authorized ly wby setting up tbe reasons it void. by after an authority statutes, the' Constitution and do .this Our conclusion could she adjournment express cannot without special pleading. Article without V. take action or make order 1918, provides S. C. *3 whatever. any necessary deny be special to <&wkey;207(3) Appeals Courts pleaded de —Court original injunc- authorized to issuei tion writs of regard plea but such fendant ed jurisdiction. protect expressly admitted. as denied unless Const, 6, laws, § Under required so, While not specially pleaded do Appeals Courts of Civil are tribunals judg of the rendition pellate, only special, and limited ment court district original such conferred matrimony, and which dissolved bonds statute, the Constitution or but under Ver- implication a it was Sayles’ 1914, 1592, non’s Civ. § copy injunc- valid introduction are authorized to issue writs protect jurisdic- tion when' tion. their facie established but it is settled in this state that <&wkey;207(3) Appeals 3. Courts —.Court of Civil foreign jurisdiction, injunction temporary. pending cannot issue attacked in rem and final determination- of action district court. in. juris state for fraud courts of grant refuses to diction, injunction Ap- temporary the Court of Civil pro- peals, pending judicata final determination of the it. Richmond res ceeding appeal Court, District and before an App.) 217 W. Civ. S. v. perfected, has or writ case, in that While authorities cited. no has the action't.o Case, in the Givens cited and in the injunction. temporary tected opinion (Tex. App.) 195 S. W. Civ. t pleadings had the not set ou the In Chambers. judgments, invalidity was. Wilbarger y the article the statute necessar Leak, Judge. County; V. Pegg (Tex.) to. Brooks v. above referred 595; Teal 8 Martin v. S. W. Electric Ice Com- & 691; Scott, League against City 25 pany v. 29 S. Tex. of Vernon and others. Bradley 521; Deroche, App. 318, denying application S. W. 61 for tem- From an order plaintiff appeals. Applica- porary injunction^ Northern Texas 70 Tex. Traction Co. v. Smith 223 tion denied. Dickson, 1013; Lehnen 148 U. Killough, Vernon, Berry, & Stokes ; Sup. Ed. L. R. C. L. Ct. Napier Brown, Templeton, Brooks, & of San is in 115. This no sense a § based Antonio,, for diyorce foreign judgment, nor is^he Cook, Bonner, Storey Storey, Rob Cook & judicata res Mason, Cole, Harry Vernon, for ert appellees privy any or one who was a simply granting which, fact, would BOYCE, J., KLETT JJ. O. recovering appellant preclude the appeal .in this case. second the in the first Being stranger the wife deceased. appeal down handed posi inis found in term time governing pleas rules insist- that tion to of nul tiel record plicable. amended Since judicata res presented judge petition the trial Bingham, 13 Tex. Bertrand v. temporary injunc- chambers, praying (Tex. Civ. 229 W. v. Holland White hearing, tion. After notice and a full grant writ and the trial from that order the record refused is overruled. The motion to this praying re- court in vacation view the this court the trial grant judges of in- writ & ICE v. CITY OF ELECTRIC CO. illegal junction, restrain the acts com- al. VERNON et plained protect “to hearing” pending Be- here. this court fore the temporary of Civil Aug. sought a injunction restraining appel- <&wkey;69Judges dispose should I.Courts lees— in vacation as is au- business statute. transferring diverting Constitution “(a) thorized judicial city portion sinking busi- fund rule It is the" drawing a court transacted in term warrant from' ness should be topic Key-Numhered i@n=>For see same in all other oases