*1 193 SOUTHWESTERN REPORTER Junе, deputy, the in sioners’ court until 1885. think fact made without would be amply charge.” evidence warranted the merit. cases, Divorce, [Ed. Note.—For Campbell other see Cent. The facts differ- Case are Dig. § 264.] There, ent here. á. con- from those &wkey;>160— 7. tract was made with the commissioners’ Divorce Default Voidable Judgment. they accepted court, and work and Where and sheriff’s return themselves, acts had bound on the citation action were in the divorce suf- allegations do not this case the show such personal ficient to show on the service defend- merely therein, void, ant it a condition. was not void- able, upon showing by ord aliunde the rec- evidence affirmed. it w'as invalid. cases, Divorce, [Ed. Note.—For see other Cent. Dig. § 521.] 8. Divorce <&wkey;l67 SWEARINGEN v. SWEARINGEN. —Action Set Aside De- (No. 5715.) cree-Limitations. As the and record divorce (Court Appeals Civil of Texas. San Antonio. affirmatively service, action showed and was only the 1917. Motion for Re- upon, Jan. On showing by voidable evidence aliunde 21, 1917.) hearing, March invalid, record that a suit to set it aside, ground on the that defendant was not &wkey;>149 — 1. Process Return Officer— properly citation, served with was barred at Evidence. expiration years of four after such defend- to set return of оffi- order aside the granted. ant learned that the had been divorce citation, cer on a the evidence must be clear eases, Divorce, [Ed. Noto.—For other see Cent. satisfactory, there should two wit- Dig. §| 533-548.] strong corroborating or one nesses witness with evidence. 9. Appeal &wkey;>930(l) and Error —Review— cases, Process, [Ed. Note.—For other see Cent. Verdict. Dig. 202-205.] support §§ On review the evidence to a ver- plaintiff verdict, — dict for evidence most favorable deference — <&wkey;36o(3) 2. Triad Special Ep- Verdict plaintiff must be ac- ee ct. cepted as true. special effect of a verdict under Appeal cases, statute [Ed. trial court have other see would Note.—For right ignore any portion Error, Dig. 3758.] Cent. §§ drawing judgment, though same even Property <&wkey;249(2) 10. Community Divorce — found the evidence insufficient to sustain such Sueficiency. -Evidence — applicable under the rules of law there- jury finding held to Evidence warrant a to, but would set aside the entire ver- community the fair market estate value of the give dict or effect to all of it. $16,958.24. divorce decree was time cases, Trial, [Ed. Note.—For other see Cent. cases, Divorce, Note.—For see Cent. TEd. Dig. 873.] § Dig. 704,] § >&wkey;352(4) 3. Trial of Issues. —Submission 11. divorcе, <&wkey;271 In an action to set Husband decree of Wife —Division Community Rep- community property Property which made division of —Fraudulent parties, resentations. separation If a from his husband wife in the alternative to set aside the division promised and support for her spe- future contributions where the case was submitted on maintenance, intending issues, time to dis- cial evidence on not submit if the court was satisfied that promise, making to deceive his regard issue was not sufficient it should wife, promise, per- issue, the refusal case or if it was desired place, questions credibility form took would amount such actual determined justify question entire issue. fraud sion of property authorize the rescis- as should be so worded not to cover community a contract for division promise. induced cases, Trial, [Ed. Note.—For other see Cent. cases, Dig. see [Ed. Note.—For Husband § 840.] Dig. Wife, Cent. §§ 989-1002.] <&wkey;167 4. Divorce —Decree—Actionsto Set Findings. — <&wkey;255 Aside — 12. Divorce Conclusivbness plaintiff’s Judgment Knowledge of action so far — Cause Ac- relates to the issue whether the divorce should tion —Evidence. by limitation, be set aside is jury finding barred find- Evidence ing properly special was not served with submitted that did issues copy citation in the divorce of fraud husband in have ing promising or of of her stat action wаs immaterial. amount support, cases, Divorce, [Ed. to contribute to her future Note.—For other see Cent. Dig. fact the exercise of dili §§ due 533-548.] gence- fraud, led her to discover such would have Process &wkey;>l49 Return—Evidence—SUF- — bringing four before the action. FICIENCY. cases, Divorce, [EH. Note.—For other see Cent. Evidence held insufficient to set aside the Dig. 722-724.] §§ sheriff, deceased, retu'rn of the that showing since properly served with cita- 13. Divorce <&wkey;252 Aside —Action .Set tion and in the divorce ac- Property. Community Decree — tion. properly and divided cases, Process, [Ed. Note.—For other see Cent. plaintiff’s equally, deducted from Dig. §§ 202-205.] payment agree- made under the former half the ment, that <&wkey;80 no merit contention 6. Divorce oe —Service Process —Re- Validity. made as in a should be the division divorce turn — objection action. An to a return on a citation in eases, Divorce, the divorce case on the Note.—For other see [Ed. the sheriff Cent signed it, although Dig. wrote and 713-715.] the service §§ topic Key-Numbered other cases see Digests and Indexes KEY-NUMBER *2 Tex.) v. SWEARINGEN SWEARINGEN Rehearing. gence concealing discovering On Motion for her husband’s .in the amount of their es- &wkey;>167— Setting
14. Divorce
Aside —False
tate.
Testimony
Testify.
—Failure
casеs,
[Ed. Note.—For
Limitation
see
As
knew as
as she knew the
soon
Actions,
Dig.
Cent.
not,
724.]
§
was
rendered whether or
portion,
the divorce
on
had been rendered
Appeal
Court,
County;
from District
Bexar
testimony,
false
related
Ezell, Judge.
W. F.
conversant,
to facts with
if the
which she was
testimony upon
Swearingen against
Suit
which
decree of divorce was
Lela
A. J.
testify
her
false
neglect
failure to
an act of
Swearingen.
Judgment
and- de-'
position
was in
to ask that
appeals.
fendant
Affirmed.
said
of the
be set
decree
aside.
See, also,
took would amount to actual fraud affirmed. .such justify would authorize the rescis SWEARINGEN, J., disqualifi- promise. Us a entered sion of contract induced such cation in this case. Seidel, Ins. Mutual Reserve Life Co. v. Civ. Tex. and cases Rehearing. On Motion for way ques cited. In therein view the the worded, any very we must [14-16] was consider act In case it true tion this that only pleaded plaintiff’s partition not suit was to set aside the of fraud jury to have been the found agreement, judgment any but also the if there is evidence to such finding. testified, court, a Plaintiff defer recites that was based the testimony upon agreement upon the verdict find ence to such to evidence to true, plaintiff agreement told be that he had fair the that said made a except $1,200, of the property. lost all estate and that division of the It is contended that agreement really merged.in judg believed him. she estate consisted of Plaintiff, money believing upon relying ment, practically correct, and notes. and this is for a 'statement, agreement judgment setting returned Califor to aside would children, plaintiff her and on account nia with financial to of no assistance as she be stringencies never'returned to Texas with the still be confronted Her Tex.) SWEARINGEN .451 SWEARINGEN theory rights, from her which fraud to fixed all such is that she was induced operated but into court to agreement partitioning to her not to come induce enter into the property, repre- rights. that, relying upon sec- settle such place, only per- ond son as her was the mate the husband sentations agreement, her to which induced agreement testify who steps could that said to controvert she took no so, division, was fair agreement must have done or set when it was aside such part reciting unless evidence evidence, of the decree that troduced in that she did ’showing fair- falsity representations was introduced ascertain the agreement 1913; ness of the mis- wаs inserted that until she returned to Texas in take, agreement and it no means clear judgment upon was based that ' perjury easily procured or ex- by fraud, could if it was from her posed. upon based extent McMurray McMurray, testimony. In the case of perjured evidence consisted of 357, wife, that, Tex. having W. sued that, who was Appellant contends part divorce and for division right of the in of the cerned, set aside so far as the (cid:127) being trial, decreeing failed to attend the is con- a divorce very herein, similarly limitation, situated is barred attorney. represented but was cree was A an as to follows that we should hold the same entered, brought and she afterwards relating property the rights, cause of action suit to set aside such decree on the knew clear that testimony upon it was rendered false Supreme question division of of the involved given by Court, her husband. The community property. the ence is a differ- There speaking through Judge Stayton, held that considering in mind borne her to a stated facts her which entitled two causes of Plaintiff knew as soon action. re-examination of com- of such as she knew the was rendered munity property, value not, portion, whether or as to the divorce additional thereof with connection it had been rendered on false already give her decreed to her would related to facts that which she mony equal and, share der the law was to that which the defendant un- conversant, if the testi- was false, entitled retain. Accord- testify her failure to ing reasonably appeared to her contentions it neglect such an act of was in no present that had she been regard and testified with position portion to ask said of the de- grounds which the divorce fact, cree be set aside. As matter she sought might prevented have' the di- upon setting strongly relied most part aside being granted, vorce from but her failure to decree evidently do this was court as a fraud not considered jurisdiction, contending court was without; upon the as affect- that she had not been with citation. served ing right set the decree in her aside so far relating The rights of the decree property rights. as it affected was rendered in the motion that: It is contended claimed her to have been made reason fraudulent, “If the it wouldoc- representations her, of false cupy attitude as false upon testimony had a husband, who, she perjured testimony basis which constituted the right assume, only person judgment.” was the having knowledge or not he had lost It is also contended that a decree will not except all the amount reopened falsity because she be states he told he still had. It cannot obtained, testimony which it was that as to the said rendition of this injured party deprived because the of her fraud of know whether has been believing she was in fault for decree right appear at th'e trial some representations assuming the agreement party. opposite "We do respects legal, inwas and in any very good distinction failing appear and cross-examine her hus- fraud which de- be drawn between band. It is motion where a party prives the trial party appear fails to and answer he cannot place time, certain and fraud take at a will which induces versy, subsequently maintain action to set a settlement of the contro- perjured false obtained party believe and leads the other neglect because of the of the de- at the trial would be the attendance *10 appear suit, fendant to and answer in the may, formality. this it But be useless when, by doing, perjury so the could that our bear not understand do out decisions easily have been disclosed. The rule thus theory that no case will a decree frequently applicable, stated is doubtless upon that it ob- set aside be- suggest why two reasons themselves it is not testimony. false Several tained because of applicable place, to case. this In the first in the motion were referred to cases plaintiff alleged proved and to satisfac- McMurray Mc- case of v. discussed in defendant, tion of the merely that instead Supreme supra, Murray, our Court held and serving her with citation and testimony itself constitut- false such letting petition and her come into court language: following fraud, using the ed by rights, and settle their fraudu- by giving testimony of false willful “That the procured representations party in relation matter lent to a af- to action 193 SOUTHWESTERN REPORTER their former him, him the bulk of the what discovered promises er learned which was whom when she did resided California, and, receiving self and vestigate dren, acy tion year, during which time she resided in Cal- making ifornia; ant, lating reduced to closes ents on account of band had been in edge by starting and she with tion is tion. period and if the other ment fact until filing 727, upon Ara, ray Case, our courts will entertain a suit to set aside pernicious fecting jured party is examined.” being for such conduct There This court [17] willfully given by her must be considered. The others In the case of Davis all of their alleges summer of 1913. She brother, alleges between her husband and fault on his fall of report she decided evidence on this it was held filed maintaining negligence false she invested Ms suit to set alleged being Appellant to .set aside that an issue to be tried is fraud of whether she maintained there; S. W. property rights, children, cases. compelled the facts or to character cannot six within conclude her done the entire for the as her share who was home, as would have his connivance or her in 1913. She being estranged no such *11 go it conclusion other facts its entitled to diligence her suit the case of Avocato v. to return part, it has been held has been under such attacks to Texas a suit within the proven that a inception conclusion, and had no means a reasonable time before party scheme that defendant had possession has followed estate, to earn a relying upon failing her and their three chil- purpose then issue. failed circulated negligence at El party notes, marriage and want of knowl- v. friendly cannot be both the no assistance from go if false chargеs proceeds have' the cited and followed until be barred that she learned that its be set Jones, to discover such California after to Texas until It is true that living prevented but in- connec- conspiracy questioned, to the suit or allegations appellee, Paso, from her in a home in thereof for a prevent others, and her hus- ments relative with rendition; judgment. procurement, securing the MeMur- defendant’s that the in- to the sale estate was to defend- aside in a 149 S. decree re- relations, pleadings statutory rendered summer for her- conspir- tbe most Sonora, because charged alleged limita- allege given Dell’- with- ques- judg such nev- par- dis- her W. as done re- it tition is what a tion he put party Vogt, tations were we believe cautious Civ. S. W. injured cided been so to his some of our cases of no er the deal is vestigation, although must the other great but in his as are lows: needed fraud as would munity property, a duty constituting the he pleadings sought, assuming from such ning use of reasonable knowledge may appear 34 Tex. matter of law that able discovered. The rule stated such fraud within such time as ráy Case, prominent. exercised until she came to Texas. pect faith, sense a trustee for his gard to the extent of her husband’s losses property, slight bearing, and there been started effect. “The [19] [18] Plaintiff shows that she did not sus appears relies, has protect allegations, party fraud, presented App. laches, until diligence plaintiff under the same difficulty urged against Tbe rules of law are well and derelict 199-204; applying person knowledge. ordinary information from her is party submitted to the applied a close justified Civ. error now upon inquiry so the court must falsity hand, whether he and that barred Judge he must allegations may the fraud is discovered or it cannot be her from her would be its to us that reasonable show false. Coleman v. by petition suspicious to become consummated, discover, own but the not be rights, prevent one, 110 S. W. the court cannot would have be other facts which have a them Isaacks rule is a statement Neill, ordinary prudence, 1. Each case must be frequently of some under consideration. diligence might such fraud. allege husband is facts, such remaining subject under our On the other necessary stated that as to com the court can is considered practically require allegations judged circumstances, is the suit was or in foregoing plaintiffs by the exercise of reason- exceptions in Pitmаn v. sometimes could have discovered 78 W. the statute jury.” new duty said, wife, entitled to the relief suspicious right concealment of report allegations person the fact the facts long determine from the fact which would is one diligence failing 970; Smalley ho has been applied Wright, done. experienced, and start an facts In the McMur- his. as a matter of if he conceals bound to in a this case the inactive until decisions, to enable her had order that Ebeling, what a are the most are true. would have action would him to that withholding so established, conduct to the have come have The breach of exceptions filed, restricted represen hand, has been say involved, say fact, with re probably has been situated 50 Tex. Holmes, discover, as fol assign- If, ques guilty very good been as a case then run aft but pe de in If y. Tes.) CO. ANTONIO WATER SAN SUPPLY GREEN Appeal Court, law, dili Bexar Coun- from District the exercise of reasonable Judge. ty; Ezell, gence tbe W. discovered F. Injunction against San that her action C. S. Green within time Supply Company. for Decree suit. The Antonio she filed Water been barred when jury defendant, complainant appeals. Revers- question, and negligence is issue ed and rendered. reference to with supported one, by evidence, a close also Powell, Antonio, appel- H. for E. of San say the cannot evi that we conclude but we Birlchead, Cunningham Taliaferro, lant finding. support such dence does Jr., Green, Bushick, John Lee and Frank H. is overruled. The motion Antonio, appellee. all of San for Green, ap- SWEARINGEN, J. S.C. enjoin pellant, An- the San filed this suit to SUPPLY WATER ANTONIO SAN GREEN appellee, Supply Company, from tonio Water (No. 5787.) C O. cutting supply for domestic off of water Appeals (Court San of Texas. Antonio. of Civil city Rehearing purposes appellant’s home Denied Feb. 1917. 28, 1917.) March city had, by Tex., Antonio, a of San which — contract, obligated appellee <&wkey;63(2) fur- franchise to Law Public 1. Constitutional Supply-Powers City. oe Water appellant rates fixed nish the water at prescribe regulate and to and rates Power injunction city. denied. The company enjoy- prices ing nishing ato water to be effect, alleges Appellant’s petition, granted for to use the streets fur- franchise nature, governmental in its quasi water appellee is a cause of to be that action only by 'body to whom be exercised and can it enjoying public corporation a fran- service nondelegable. and intrusted city of San chise contract made with cases, Note.—For other see Constitution- [Ed. alleys for and Antonio to use its streets Dig. Law, 114.] al Cent. §§ necessary equip- mains, pipes, — <&wkey;63(2) Public 2. Constitutional Law Supply op City. supplying for to the inhabitants ment of the water Water —Powers power regulate governmental, city, charge the rates therefor prescribe state, and, in the rates for water is inherent grant, changed fixed franchise unless because there no constitutional city; appellee appel- delegate hibition, Legislature did furnish a can required municipality, must exercise water, charged which lant but a rate in excess by the charter. the rate established in the con- franchise cases, Note.—For other see Constitution- [Ed. charge tract. The unlawful was made Law, Dig. 114.] al §§ Cent. charging adding the lawful rate and thereto — &wkey;>188(2) 3. Waters and Water Courses charge desig- month, an extra of 50 cents a Supply Public Water —Franchises—Con- by appellee rent”; ap- nated pellant as “meter struction. permitting A use of franchise contract pay charge refused to excess strictly case public supply water must be streets month, styled rent,” 50 cents “meter a city, оf in construed favor of the according tendered amount due ambiguity it is fair doubt resolved public. Appellee accept favor established rate. refused cases, [Ed. Note.—For other see Waters rate, rate correct demanded excess Dig. Courses, § 287.] Water Cent. ap- also, payment of which default <&wkey;203(8)— Courses 4. Waters Water pellee supply threatened cut off Supply — — Public Water Construction. Franchises entirely appellant. water Appellee and demur- public answered a denial a contract for wa- Where franchise supply express prescribed an by alleging definite flat rer, ter specially a answered a rate water rate and definite measured signed appellee contract addressed through company meter, a was re- which the appel- by appellant, which the terms of request consumer, quired to install on of a comnany require promised pay applied consumer to lant for meter and could not meter rent in addition meter rate for pay the established the franchise rate water. contract, promised addition thereto cases, Note.—For other see Waters and [Ed. pay 50 a month rent of mе- cents Dig. Courses, 294.] Cent. § Water ter.— <&wkey;203(8) Waters Courses Water By petition appellant supplemental aver- Supply Public Water —Franchises—Con- application void, red that struction. public supply Where the franchise water consideration to it as there was no excepted prescribed from the rate rate un- application contract, the written special contract, company der requiring could not appellant notice prerequisite had been canceled furnishing as a meter, demand of appellee customer was re- to the months to that 'by quired supply, its franchise to that the cus- charge was excess made. sign pay rent, charge tomer contract meter established the facts evidence water, meter well as for tract ly rent as con- voluntary, especially per- being coerced, especial- action. Those and not meter where after the was installed the cus- opinion herein will men- tinent our company pay tomer notified the that he would tioned hereafter. meter rent. question presented for our considera- cases, [Ed. Note.—For other see Waters and Courses, Dig. franchise contract authorize Did the tion is: § Water Cent. 294.] Key-Numbered topic <S=>For Digests see Indexes other cases KEY-NUMBER