Gunther v. Gunther (367 S.W.2d 206, 1963)

TIREY, Justice.

This action is one for divorce, non-jury. Mrs. Gunther recovered a divorce on her cross-action. The cause is here on a transcript without a statement of facts. There was no request for findings of fact and! conclusions of law, and none was filed.

The decree is assailed on three points.. They are substantially to the effect: (1). The Court committed fundamental error im appointing a receiver in this cause absent pleadings and evidence sustaining the grant: of receivership because no request was ever made by appellee for such appointment, and the receiver was appointed in a final judgment without any proof or pleading whatsoever; (2 and 3) That the Court abused its discretion in refusing to grant appellant an additional ten days in which to file his statement of facts with the trial court and with the appellate court.

Appellee’s counter-points are to the effect: (1) The trial court properly appointed a receiver in order to make division of the community property of the parties; and (2 and 3) That it did not abuse its discretion in refusing to permit appellant to file a statement of facts because, under the applicable rules, the court had no discretion to extend such time.

A statement is necessary. The transcript shows that appellant filed his original petition with the District Clerk on October 2, 1959; that thereafter he filed his sworn motion for dismissal, verified on February 18, 1960, and the court granted the motion without dismissal of the cross-action, but the date of the filing of this motion is not shown in the transcript. The decree recites that this cause went to trial on the 6th day of November, 1961, and that plaintiff and cross-plaintiff were present, as well as their attorneys, and that the Court, after hearing the evidence and •considering the pleadings, as well as argument of counsel, took the matter under ad-visement and thereafter, on the 26th day •of January, 1962, all the parties again appeared before him and the case was re-opened and additional evidence was offered .at the request of the court, and thereafter the court announced its judgment in open •court on April 30, 1962, and final judgment was entered. The court granted the cross-plaintiff a divorce on her cross-action, and found that there were two children born •of said marriage, John Emil Gunther, Jr., 'born February 14, 1947, and Margaret Love •Gunther, born November 8, 1944, and found that Mrs. Gunther was a fit and proper person to have the full custody and