203 S.W.2d 568 | Tex. App. | 1947
Ona Belle Hickey was granted a divorce from W. C. Hickey on the 15th day of March, 1946, and the custody of their minor child, Elnora Hickey, was awarded her. On the 12th day of November, 1946, W. C-Hickey filed in the same cause what he-termed a “motion to reform the judgment”, alleging changed conditions and asking for the custody of said child. Ona Belle Hickey filed a plea of privilege alleging her residence to be in Tarrant County. W. C. Hickey filed a controverting affidavit thereto and sought to hold venue in Erath County on the grounds that the divorce having been granted in the District Court of that county, said court retained jurisdiction over the custody of the child, and further that Mrs. Hickey was not a resident of Tarrant County but, on the contrary, was a resident of Erath County.
A hearing was had upon the plea of privilege and at the conclusion thereof the court overruled the plea. Mrs. Hickey has duly appealed to this court.
The petition filed by Mr. Hickey,, although designated a “motion to reform the-judgment”, was a new and independent suit.. If Mrs. Hickey had established her home-in Tarrant County prior to the filing of such petition, the plea of privilege should have been sustained. Lakey v. McCarroll, 134-Tex. 191, 134 S.W.2d 1016. It was not incumbent upon her to offer any evidence.. The plea of privilege, as filed, made a prima, facie case in her favor and had the effect, of placing the burden of proof upon Mr. Hickey. The only issue in the case was in what county did Mrs. Hickey have her residence at the time Mr. Hickey filed the petition asking for a change of custody of' the child. It developed upon the trial of the case that Mrs. Hickey married William Willingham the later part of October, 1946. The trial court filed findings of fact and conclusions of law. lie took judicial notice of a judgment entered by him in the case of Hazel Willingham v. William Willingham on the 19th day of October, 1946, granting a divorce to the parties. He also took judicial notice that the petition filed in said cause alleged that William Willingham was
However, the trial court was not authorized to take judicial notice of the record made in the Willingham divorce case. 17 Tex.Jur. Page 204. There is no evidence in this record showing or tending to show that William Willingham was a resident of Erath County other than a judgment granting a divorce to his former wife. This is not sufficient.
Mrs. Hickey testified that she moved from Stephenville to Fort Worth in May, 1946, and that she was, and had been for some time, residing there with her husband. Her evidence, in many particulars, was not convincing. The answers she gave to questions propounded to her by counsel were ■evasive and unsatisfactory. She testified that her husband was employed in Fort Worth but that she did not know by whom he was so employed. Before it was shown that she was married to William Willingham, she was asked if she knew him, she said she Icnew him when she saw him. Thereafter, she admitted he was her husband but she could not or at least she did not give the •date or place of their marriage.
We feel that the case has not been fully developed and that the ends of justice will be better subserved if the cause is remanded for a new trial rather than rendered. London Terrace Inc. v. McAlister, 142 Tex. 608, 180 S.W.2d 619.
Judgment of the trial court is reversed and the cause is remanded for a new trial on the plea of privilege.
