Harris v. Harris

HICKMAN, C. J.

This is a divorce'suit instituted by appellant against appellee. By a cross-action ap-pellee sought a divorce from appellant and a division of the community property. A jury was demanded, and the case submitted on special issues. Upon the jury’s findings, divorce was granted appellant and denied appellee. The court also| made division of the community property, and it is against •that portion of the judgment that complaint is made.

"We are first confronted with a motion of appellee to affirm the cause on the alleged grounds that appellant’s brief was not filed in time and that no fundamental error appears of record. We have inspected appellant’s brief, and find that same contains no assignments of error. We shall therefore not pass on the question presented in the motion of the failure of appellant to file his brief in time, for, since same, as filed, contains no assignments of error, we have not the power or authority to consider it anyway. Clonts v. Johnson, 116 Tex. 489, 294 S. W. 844, 846; Natkin Engineering Co. v. Ætna Cas. & Surety Co. (Tex. Com. App.) 37 S.W.(2d) 740.

In the case first above cited, the Supreme Court, in answer to a certified question, stated: “Where an appellant or plaintiff in error wholly fails tcf copy any assignments of error in his brief, the Court of Civil Appeals should confine its consideration of the case to those fundamental errors apparent on the face of the record.”

We have examined the pleadings, charge of the court, verdict, and judgment to ■ determine whether o(r not fundamental error appears therein, and have concluded such an error is Apparent therefrom, and that the error is of such a nature as to require a reversal of the judgment in part.

One of the special issues submitted to the jury was as follows: “Do you find from the preponderance of the evidence that plaintiff transferred the nates _and personal property ■described in the deed which has been introduced in evidence for a tract of land which is described in said deed, for the purpose of defrauding the defendant?” This issue was answered “Yes.”

The deed referred to in this issue was one from J. A. Harris to appellant, and was executed prior to the trial. The land conveyed by the deed was a certain farm in. Mills county, and a part of the consideration for the conveyance was the transfer by appellant to J. A. Harris of certain personal property, including a note for $1,500, executed to appellant by Port Bottling Company, of Corpus Christi. J. A. Harris was not made a party to the suit. Upon the finding that the transfer of this personal property was made for the purpose of defrauding the appellee, the court’s judgment set aside such transfer and held same fot naught, and, in the' division of the property, awarded to appellee the $1,500 note transferred by appellant to J. A. Harris. The farm was not disposed of as a part of the - community property, nor were the rights of the parties adjudicated with reference thereto.

Since J. A. Harris was not a party to this proceeding, no judgment could be rendered binding upon him affecting his property rights. As between him and appellant, their trade still stands, unaffected by this decree. The only method by which this personal property transferred by appellant to J. .A. Harris could be brought back into the community and partitioned between the parties would be by joining J. A. Harris as a party defendant in the suit and procuring a judgment of cancellation binding as against him. Unless that is dojne, then the property to be divided between the parties hereto consists only of the equity, if any, in the farm, and. the other items of personal property which were not transferred irl part payment for the farm. The court, in our opinion, was not authorized to treat the prbpefty involved in the transfer for the farm as still belonging to the community. As the mktter is left by this judgment, another suit would be required to determine the rights of the-parties to the farm. These rights should be finally determined in this suit, and upon another trial, if appellees desire to set aside the transaction between appellant and J. A. Harris, the latter should be made a party defendant and complete relief granted to all parties. Otherwise, the farm should he treated as a part of the community property.

Neither party hereto is complaining of that portion of the judgment granting a divorce •to appellant and denying one to appellee. We see no just reason for a retrial of that issue. We have the power to reverse and remand a cause for retrial of the erroneously decided issues alone where the issues are separate and distinct and the error calling for reversal does not affect the issues correctly determined by the trial court. Rule 62a, 149 S. W. x; 3 Tex. Jur. §§ 808-811, and authorities there cited.

We accordingly affirm that portion of the judgment awarding a divorce to appellant, and reverse and remand the cause for another trial on the issue of the proper division of the community property.

Affirmed in part; reversed and remanded in part.