307 S.W.2d 956 | Tex. App. | 1957
Lead Opinion
Elroy Phelps appealed from a judgment' which divested him of his community interest in two lots, two automobiles, all household furniture, the cash surrender value of an insurance policy and a bank deposit. The judgment awarded all those properties to Orintha Phelps, who was also-awarded a divorce from appellant. This-appeal does not raise any point about the-order granting the divorce. There were no-children.
The statement of facts shows that on January 25, 1957, there was a hearing concerning the property accumulated by the parties during their marriage. There was discussion between counsel and the court,, but no evidence concerning the property was heard. During these discussions, the judge and counsel discussed some difficulties they had experience'd in obtaining information about appellant’s Civil Serv
Appellant, Phelps, tried to state something to the court, but he was stopped and the court said: “He is deliberately falsifying right now.” This colloquy then followed between appellant’s counsel and the court:
Counsel for appellant: “ * * * Will I be allowed to put Mr. Phelps under oath and let him testify so far as getting a record as to what his understanding was?”
Court: “In order to put you in the best light possible, I will put it this way, Mr. Bellinger, and give you the strongest grounds for appeal you have. I wouldn’t believe Mr. Phelps if he were put under oath * *
Counsel for appellant: “Will the Court hear evidence today or at its convenience as to why Mr. Phelps would not sign or has not signed and secured information as to the amount of his retirement?”
Court: “* * * As far as the Court is concerned, we anticipate that Mr. Phelps will quote at least one person to whom the Court has talked and that his testimony will be in direct contradiction of what that person’s testimony is. I don’t want to be put in a position of having to ask the District Attorney to file on this man for perjury.”
Counsel for appellant: “Sir, I don’t know what it would be. ■ I am willing to run that risk, sir.”
Court: “I am willing to run the other risk of just cutting him off entirely without hearing any evidence whatever from the defendant, Mr. Phelps.”
Appellee did as the trial judge suggested and filed the application for the award of all property, and the court rendered judgment for appellee. Just as the trial judge said, he gave appellant “the strongest grounds for appeal.” Other problems are suggested by this record, but the case must be reversed because the court rendered judgment without evidence. Appellant was in court and asked for but was refused an opportunity to testify, to present evidence, and to make a record. The judgment against appellant was pronounced before appellee had even filed a pleading asking for the relief. From the discussions between court and counsel, it appears that the judge learned something about the Retirement Fund, we know- not what, from telephone conversations with other persons. We have no way of knowing the facts upon which the judge divested appellant of all title and property. The only evidence to support the judgment was the undisclosed evidence of the judge himself, in which case he should have been a witness rather than the judge. A litigant may not be entitled to win, but he is entitled to a hearing and a record. Appellant was denied both a hearing and a record. The judgment is accordingly reversed and the cause remanded at appellee’s costs. Art. 1, Sec. 19, Tex.Const., Vernon’s Ann.St.; Burrage v. Hunt Production Co., Tex.Civ.App., 114 S.W.2d 1228, 1235; Thurman v. State, Tex.Civ.App., 67 S.W.2d 382; Corsicana Hotel Co. of Texas v. Kell, Tex.Civ.App., 66 S.W.2d 760; State v. Humble Oil & Refining Co., Tex.Civ.App., 263 S.W. 319, 323.
Rehearing
On Motion for Rehearing.
Until the court entered the order from which appellant appealed, all of the issues
Appellee’s motion for rehearing is overruled.
