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Berger v. Berger ( 1973 )


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  • 497 S.W.2d 453 (1973)

    Peggy Lee BERGER, Appellant,
    v.
    Sando BERGER, Appellee.

    No. 6321.

    Court of Civil Appeals of Texas, El Paso.

    June 13, 1973.

    *454 Michael R. Gibson, El Paso, for appellant.

    Stewart Victorson, El Paso, for appellee.

    OPINION

    PRESLAR, Justice.

    This appeal is from a judgment of the trial Court denying appellant any relief in her suit for annulment of her marriage to appellee. We are of the opinion that the Court was without jurisdiction to render the judgment which it rendered.

    Citation was by publication. Trial was held three days before the appearance day of the respondent so cited. In response to a request for findings of fact and conclusions of law, the trial Judge concluded: "That this Court had no jurisdiction to have a hearing of this cause on October 13th, 1972." The citation ordered the respondent to appear by filing his written answer on or before October 16, 1972. The trial Court made a determination of the merits of the case—denied the annulment. In that, we think the Court erred, for having determined that it was without jurisdiction the Court could not pass judgment on a cause which was not before it. There is no question of the Court's lack of jurisdiction, for the matters alluded to appear in the judgment itself and elsewhere in the record. It also appears that no attorney has been appointed to defend after appearance date.

    The judgment of the trial Court is here held to be void. Time has cured the impediment to the trial Court's jurisdiction, and this cause is remanded to the trial Court for a new trial.