Opinion
No. 3736.
September 29, 1938. Rehearing Denied October 20, 1938.
Appeal from District Court, Dallas County; Dick Dixon, Judge.
Suit by Clellie Elizabeth Lunt against L. W. Lunt in the nature of a bill of review to set aside a judgment of annullment, and for a judgment of divorce, and equitable division of community property, and the recovery of separate property, and, in the alternative, a judgment for damages for defendant's alleged tortious conduct toward plaintiff prior to the annullment of their marriage. From a judgment in favor of the defendant, the plaintiff appeals.
Affirmed.
The statement of the nature and result of the suit contained in the appellee's brief is adopted. It reads: "This is a suit in the nature of a Bill of Review filed on February 5, 1937, in the 95th District Court of Dallas County by Clellie Elizabeth Lunt, appellant, against L. W. Lunt, appellee, to set aside a judgment of annulment of that Court entered on April 25, 1933. In addition to a vacation of the judgment of annulment, appellant sought a judgment of divorce, an `equitable' division of community property, the recovery of her separate property, and, in the alternative, a judgment for $50,000.00 damages by reason of appellee's alleged tortuous conduct towards appellant prior to the annulment of their marriage. When the case came on for trial appellant in open court abandoned any claim for recovery of her separate property. Appellee's general demurrer to the petition was sustained," and the suit dismissed.
Appellant's petition is lengthy. The material facts shown by the petition are summarized in appellee's brief, which we adopt and quote, as follows:
"(1) That appellant and appellee were married on October 15, 1914. (2) That in 1928 appellant was undergoing her menopause, and during a `severe paroxism of her ailment' appellee filed lunacy charges against her. She was confined in jail, and on trial of the charges she was taken to the court, but was too ill to remain during the progress of the trial. She was returned to jail, was not permitted to have counsel of her choosing, and the trial was completed in her absence. `She was adjudged insane without counsel, and committed to the insane asylum at Terrell.' Appellant was returned home within about six weeks. She was still suffering from her menopause, however, and was returned to the asylum, where she was desperately ill. A few months thereafter she was discharged from the asylum and returned home, still suffering from her ailment. (3) That a short time thereafter appellee presented appellant with some instrument with reference to their property. That she was in bed when she signed it, did not read it, and does not know its import. Appellee is requested to produce the same upon a trial of the proceeding. (4) That appellee filed a second lunacy charge against appellant. Appellant was `in serious physical condition,' was unable to attend trial, was confined to her bed in jail, and was adjudged insane without being present in court, or having an opportunity to avail herself of the services of an attorney to represent her. That appellee testified on said hearing that appellant had been insane for some three or four years, and such statements were untrue and were made with the malicious design of ridding himself of appellant. That by reason of her being absent from the court room on the trial of said cause, and the fact that she was not permitted to have counsel represent her, said judgment of commitment was void and of no effect. (5) That about three years after her last commitment to Terrell, and during her confinement there, appellee brought suit for annulment in the Ninety-fifth District Court, alleging appellant was insane at the time of their marriage. That appellee on the trial of the annulment suit testified that appellant was insane at the time of their marriage. That such testimony was perjury, and that by means of such perjury testimony — `the representation to the court of facts which were untrue' — appellee on April 25, 1933, procured the judgment of annulment. That appellant was not present at such trial, neither was she represented by an attorney of her choosing. `The Court appointed a guardian ad litem, to-wit, George W. Craig, who made no effort to communicate with her or talk to or see the plaintiff to discuss the merits or demerits of the case, but with the acquiescence and consent, and at the instance of said defendant (appellee) filed an unauthorized appearance for this plaintiff (appellant) in said cause.' (6) That the judgment of annulment attempted to make a disposition of appellant's property rights. That appellee for the purpose of deceiving the court only referred to a small portion of the property to which appellant was entitled. That the remainder of the property appellant verily believes was disposed of by said instrument which appellee induced her to sign when she was ill, and did not know the effect or contents thereof. (7) That appellant obtained an order on December 4, 1936, in the guardianship proceedings over her person and estate adjudging that she is now sane, removing the disability of insanity, releasing her from the custody of her guardian, and directing her guardian to settle his accounts and deliver up all property in his hands. (8) That despite such order her guardian, one Agnew, is withholding some of said property awarded appellant by the annulment decree consisting in twenty shares of the capital stock of Mutual Building Loan Association, fully matured, and a subscription for fifteen shares of the capital stock of said Mutual Building Loan Association, together with all amounts paid thereon, and all dividends accruing thereto, under some guise of right as guardian of her estate. That thereafter, for the purpose of providing for the necessities of life appellant possessed herself of certain stocks and bonds awarded her under the annulment decree. (9) That appellee married again on June 15, 1933. (10) That appellee prevented appellant from attending the trial of the annulment proceedings by having her incarcerated in the asylum at Terrell under a commitment which was void by reason of her absence during the trial of the lunacy charge, and not being permitted to avail herself of an attorney. (11) That plaintiff was not negligent in failing to attend the trial in the annulment proceedings for the reason that she was incarcerated in the asylum at Terrell, and `her liberty was restrained by the guards and attendants, and by being placed in cells, rooms and buildings that had steel bars and other appliances to prevent her escaping said buildings, being enclosed by a barricade, or steel or iron fence such that it was impossible for her to escape said institution and attend said trial.' (12) `That she had a meritorious defense to said annulment, in that she was not an insane person at the time of her marriage.' `That in truth and in fact appellant has never been insane, and appellee well knew this fact at all times,' and `that she has at all times been of sane and of sound mind.' `That in fact she was sane at said time, and has been sane at all times subsequent thereto.' (13) That `had she been permitted to attend said trial a different result would have been obtained in that she would have defeated said annulment, and her rights as a married woman would have been protected by her appearance, in that she could have established that she contributed to building up the community estate.' (14) That suit was brought within a few weeks after being released from custody, and as soon as she had compiled sufficient facts to base her action, and `that she used due diligence in seeking the information necessary for the bringing of this suit.' (15) That appellant has resided in Texas for a period in excess of twelve months, and in Dallas County for a period in excess of six months, immediately preceding the filing of her petition.
"Appellant alleges in the alternative that if she be mistaken about the validity of the judgment of annulment and the marriage was thereby properly voided, then appellee `wantonly and without probable cause, and with malice did the things hereinabove set forth against this plaintiff, and in addition thereto the defendant pretended for almost fifteen years to be the husband of this plaintiff, and deceived her, in that he held himself out to be her husband, and by such deception was permitted to live with this plaintiff as her husband, and did have almost nightly sexual intercourse with her,' and that by reason of such fraud and deceit with regard to their marital relationship, appellant has been injured and sustained damages in the sum of $50,000.00."
Plaintiff also prayed for a divorce.
Larry DeBogory and Eugene DeBogory, both of Dallas, for appellant.
Logan Ford and Burford, Ryburn, Hincks Charlton, all of Dallas, for appellee.
Whatever may be the rule in other jurisdictions, the authorities in this State abundantly support the view that an action will lie to set aside a judgment procured by the false and perjured testimony of the party in whose favor the judgment was rendered when the party against whom such judgment was rendered was not personally served; was not wanting in diligence in presenting his defenses in the original action; was prevented from so doing by the wrongful conduct of the adverse party, and who moves with due diligence to set aside the judgment after the same is rendered. McMurray v. McMurray, 67 Tex. 665, 4 S.W. 357; Hayward v. Hayward, Tex. Civ. App. 53 S.W.2d 108; Swearingen v. Swearingen, Tex. Civ. App. 193 S.W. 442; Bonner v. Pearson, Tex. Civ. App. 7 S.W.2d 930; Avocato v. Dell'Ara, Tex. Civ. App. 84 S.W. 443; Davis v. Jones, Tex. Civ. App. 149 S.W. 727; Ellis v. Lamb-McAshan Co., Tex. Civ. App. 264 S.W. 241; Rails v. Rails, Tex. Civ. App. 256 S.W. 688; Reed v. Bryant, Tex. Civ. App. 291 S.W. 605.
The allegations contained in the first count in the plaintiff's petition bring the case within the rule stated; for these allegations show the decree of annulment was obtained by the appellee through his false and perjured testimony; that appellant at the time of the rendition of said judgment was confined in the State Insane Asylum at Terrell, having been theretofore adjudged insane by the County Court, which judgment of insanity was procured by appellee and based upon his perjured testimony. Her confinement in the asylum and the judgment of insanity fully excuse the appellant for not presenting her defenses in the annulment suit and acquit her of any negligence in failing so to do. Further allegations show that she acted with due diligence after her discharge from the asylum and the restoration of her reason, if the same had ever been lost.
But there are other allegations in the first count which are of controlling importance and support the action of the court below in sustaining the demurrer. We refer to those allegations which show appellant had possessed herself of certain property awarded her under the annulment decree, and that the Probate Court has entered an order directing her guardian to settle his accounts and deliver the property in his hands to the appellant. These allegations show appellant has availed herself of those portions of the decree setting aside to her certain property. She has therefore affirmed and ratified the annulment decree and is now estopped to attempt to set it aside. Moor v. Moor, Tex. Civ. App. 63 S.W. 347; Morehouse v. Morehouse, Tex. Civ. App. 111 S.W.2d 831; Bearden v. Texas Company, Tex. Civ. App. 41 S.W.2d 447, 456, 463, 464, affirmed, Tex.Com.App., 60 S.W.2d 1031, 1037.
In Moor v. Moor, supra, the Court said [page 350]: "If a party has used, or attempted to use, the privilege of a decree of divorce (as the appellant did in this case to obtain and uphold a settlement made upon the face of it), he has thereby affirmed it, and cannot thereafter complain of its invalidity, 2 Bish.Mar., Div. Sep. § 1536."
In Morehouse v. Morehouse, supra, the Court said [page 834]:
"The principle of equitable estoppel has been applied in this state in Eldridge v. Eldridge, Tex. Civ. App. 259 S.W. 209; Moor v. Moor, Tex. Civ. App. 63 S.W. 347. Other courts have held that where a party to a divorce, knowing that it was obtained through fraud or irregularity, treats it as valid and acts as an unmarried person in violation of any obligations incident to the former status, he is estopped from attacking the decree. Carr's Adm'r v. Carr, 92 Ky. 552, 18 S.W. 453, 36 Am.St.Rep. 614; Marvin v. Foster, 61 Minn. 154, 63 N.W. 484, 52 Am.St.Rep. 586; Arthur v. Israel, 15 Colo. 147, 25 P. 81, 10 L.R.A. 693, 22 Am.St.Rep. 381.
"Lotta K. Morehouse knew, for a period of more than ten years that she had been charged in the petition for divorce with cruel and harsh treatment toward her husband, A. B. Morehouse, and by her silence and acceptance of the monthly payment acquiesced in the decree granting the divorce.
"We are of the opinion, upon the case before us, Lotta K. Morehouse is estopped to now, at this late date, assert the invalidity of the decree of divorce, in order that she may participate in the estate of A. B. Morehouse, deceased."
In Bearden v. Texas Company, supra, the Court of Civil Appeals said [page 463]: "We conclude further that the defense of estoppel as against Bessie Lee Griffin, nee Bessie Lee Morgan, was conclusively established by her act in receiving from R. E. Bearden, as guardian on final settlement of the guardianship, several thousand dollars collected by him as royalties from the leases which are here assailed, and further royalties aggregating more than $1000 after the close of the guardianship in monthly installments covering more than a year; all of which receipts occurred after her marriage, and with no pleading or evidence of fraud inducing such action by her."
On motion for rehearing the Court further said: "But we adhere to our former conclusion that the defense of estoppel as against Bessie Lee Griffin was conclusively established by her act in receiving from her former guardian on final settlement of the guardianship after her marriage, several thousand dollars collected by him as royalties from the lease which was assailed by her; and further receipts of royalties by her after her marriage in monthly installments covering more than a year, amounting to more than $1,000, since such acts conclusively bound her to a ratification of the lease and of the judicial proceedings which culminated in its execution."
The holding of the Court of Civil Appeals has the express approval of the Supreme Court. See 60 S.W.2d 1031, where it was said [page 1037]: "We have read and carefully considered the very able and exhaustive opinion of the Court of Civil Appeals, speaking through Judge Dunklin, relating to the appeals of Lee O. Bearden and Bessie Lee Griffin. Also we have read and carefully considered the very able briefs and arguments filed by counsel representing such parties, and in our opinion the Court of Civil Appeals has correctly disposed of their appeals, and for correct reasons given. No good purpose can be served by further discussion here."
The authorities cited support the view and we hold that the first count in the petition was subject to the demurrer.
Passing to the second count in the petition wherein the plaintiff seeks to recover damages, it is quite clear this count states no cause of action. According to plaintiff's allegations she has at all times been sane and the marriage relation between herself and the appellee therefore valid. The damages which she seeks to recover in the second count are for an alleged tort against her committed by her husband during the existence of the marriage. The authorities in this State are clear that no cause of action exists in favor of a wife against her husband to recover damages for tort committed against her person or reputation during coverture. Nickerson Matson v. Nickerson, 65 Tex. 281, 283; Wilson v. Brown, Tex. Civ. App. 154 S.W. 322, 324; Sykes v. Speer, Tex. Civ. App. 112 S.W. 422, 424, 425, affirmed 102 Tex. 451, 119 S.W. 86, 132 Am.St.Rep. 896.
In the case of Nickerson Matson v. Nickerson, supra, the Supreme Court refused to allow a wife to recover subsequent to her divorce for the tort consisting in her false arrest committed by her husband against her during coverture. The Court in its opinion said:
"The husband could not have maintained an action against his co-defendant for a tort upon his wife in the perpetration of which they were joint tort-feasors; for, out of his own wrong, no action could accrue to him.
"The tort inflicted upon the wife by the husband and another, gave no right of action to the wife against the husband. Cooley on Torts, 223, 227; Peters v. Peters, 42 Iowa 182; Longendyke v. Longendyke, 44 Barb. [N.Y.] 366.
"For such injuries, in so far as the husband was concerned, no compensation could be given to the wife, through a civil action.
"If the tort constituted a violation of the criminal law the husband was amenable thereto, and the wrong to the public might, through it, be punished.
"Whatever cause of action the wife had, accrued when the acts of which she complains were committed; and the fact of divorce subsequently granted, cannot make that a cause of action which was not so at the time the facts transpired, Phillips v. Barnett, 1, 2 Bishop on Div., 438; Abbott v. Abbott, 67 Me. 304 [24 Am.Rep. 27]."
Affirmed.