Opinion
Motion No. 5219.
September 24, 1931.
Appeal from District Court, Gregg County; Reuben A. Hall, Judge.
Suit by John Radford against Lizzie Radford, in which one O'Keefe intervened. From the judgment, the plaintiff and intervener appeal. On motion to affirm on certificate.
Motion granted.
This is a motion to affirm on certificate under article 1841, R.S., for failure to timely file a transcript of the record after the appeal is perfected.
The certified record shows the matters and proceedings here set forth. On September 19, 1929, John Radford filed suit in the district court of Gregg county, Tex., for divorce from his wife, Lizzie Radford. The suit bore the number of 7185 on the docket of the court and was tried on November 1, 1930, being the last day of the regular October term of court. On said date a final decree was entered reading, as far as material to state: "It is therefore ordered, adjudged and decreed by the court that the bonds of matrimony heretofore existing between said plaintiff and defendant be and the same are hereby annulled and dissolved, and that the plaintiff be and he is hereby divorced from the said defendant, Lizzie Radford." In the decree was the recitation that, "The defendant, although having waived service of citation, as required by law, failed to appear and answer in this behalf, but wholly made default." On April 15, 1930, and before the end of six months from the date of the decree of divorce, John Radford, the plaintiff in the action, duly sued out a writ of error to the Court of Civil Appeals to have the decree of divorce reviewed and revised. The writ of error was in all things perfected. It was claimed by John Radford in his writ of error that the decree of divorce was null and void, because his petition set up no legal cause of action and there was lack of jurisdiction of the court over the person of the defendant, Lizzie Radford.
On March 5, 1931, and before the date of his suing out a writ of error in cause No. 7185, John Radford filed in the district court of Gregg county an independent suit against Lizzie Radford, numbered 7526 on the docket of the court, seeking to vacate the divorce decree in his favor of November 1, 1930, which was entered in cause No. 7185. He sought to have the decree set aside and vacated upon the ground that Lizzie Radford never in fact executed a waiver of service of process and no waiver of process was ever filed in the cause. In this latter suit Mr. O'Keefe was intervener and Lizzie Radford was defendant. On April 6, 1931, the ease was tried and judgment rendered reading, as material to state: "Upon full hearing of the parties and other evidence and testimony, the court finds that in said divorce suit, Cause No. 7185, John Radford v. Lizzie Radford, the court had jurisdiction of the parties thereto and jurisdiction of the defendant Lizzie Radford, and that the said defendant Lizzie Radford made and executed good and valid acceptance and waiver of citation in said cause and entered her appearance therein, and legal and valid waiver of service in said suit and cause of action was executed by Lizzie Radford; and said judgment of divorce is and has been at all times in all things valid and binding and was granted upon proper waiver of service and adequate pleadings and testimony." The court adjudged that the plaintiff John Radford and the intervener O'Keefe take nothing by the suit and "that said judgment and decree of divorce is now and since the entry thereof has been in all things valid and binding upon the parties and their privies." From this judgment John Radford and the intervener appealed and perfected such appeal on April 13, 1931. On August 11, 1931, this motion to affirm on certificate was duly filed because the transcript of the record had not been filed in the Court of Civil Appeals as required by article 1839, R.S.
Robert E. O'Keefe, of Longview, for appellants.
E. M. Bramlette, of Longview, and Walace Hawkins, of Dallas, amicus curiæ.
Houtchens Houtchens, of Fort Worth, for appellee.
In virtue of article 1841, R.S., the motion filed will be granted, asking affirmance of the judgment as entered in cause "No. 7526," which was a judgment refusing to vacate and set aside the divorce decree theretofore rendered in cause "No. 7185."
In this matter it will be noted that on this day the decree of divorce in the writ of error proceeding in cause "No. 7185" was by this court affirmed. 42 S.W.2d 1060. By express terms of statute there is allowable to a party to the suit, as a legal right, the remedy of writ of error, as one of two modes for the review and revision by the appellate court of a judgment rendered in the district and county courts. Such remedy is made a continuing one for six months from the date of the judgment. Article 2255, R.S. The appellate court, when the writ of error is sued out and perfected, thereby acquires active and exclusive jurisdiction over the case. The writ of error being sued out and perfected within the statutory time in this case, the appellate court would have jurisdiction to review and revise the original divorce decree although the plaintiff John Radford had filed an independent suit and prosecuted it to judgment to review and vacate the divorce decree before the six months time allowed to sue out a writ of error had expired. John Radford's right to such writ of error would not necessarily, as a matter of law, have been foreclosed and barred by reason of the independent suit. The question is not before us now for ruling of whether or not John Radford was barred of his right to have the judgment in the independent suit also reviewed, although such judgment is shown to have been rendered at a time before the six months had expired in which to sue out a writ of error in the original divorce decree. The jurisdiction of the trial court to render the judgment cannot be considered on the motion to affirm on certificate. Dandridge v. Masterson, 105 Tex. 511, 152 S.W. 166; Brown v. Hooks, 117 Tex. 155, 299 S.W. 228 The present affirmance of the two respective judgments has the final result to make consistent, and not inconsistent or conflicting, decrees in the very same subject-matter. By the terms of both decrees the divorce stands valid and legally existing.
The affirmance on certificate is granted.