Citations
- 85 S.W.2d 952
Full opinion text
DUNKLIN, Chief Justice.
In the above-entitled suit Mrs. Stella Burguieres has prosecuted an appeal from a judgment of the district court of'the Ninety-Sixth judicial district, denying her petition in the nature of a bill of review to set aside that portion- of a judgment theretofore rendered by the same court in a former suit by her for divorce against her former' husband, John E. Farrell, in which she was divested of her interest in the community estate of herself and said-. Farrell and same vested in him in accordance with a written agreement -of the parties to that suit on file therein; and also • to cancel said written agreement. -The grounds for that relief are set out in her petition in the nature of a. bill of review. That appeal is now pending in this court. As shown by allegations in plaintiff’s petition, the former suit for ' divorce . and property settlement, instituted by herj was tried before Hon. Hal S. Lattimore, the regular elected judge of said court, who granted the divorce and also decreed the property settlement now complained of. After the divorce was granted, 'plaintiff married again to Alfred L. Burguieres, but she was by order of court given leave to institute and prosecute her present Suit to set aside the former judgment of property settlement in her present married' name of Stella Burguieres without .joinder by her husband. But no effort was 'made to set aside the decree of divorce.' As• shown by the record, the suit now on appeal was tried before Hón. Marvin H. Bfown, who had succeeded Hon. Hal S. Lattimore. as judge of the same court. Both of said judges are now. associate, justices-of this court; and appellant has filed a motion to disqualify Justice Lattimore! from acting as one of the justices in the disposition- Of the appeal which is now- pending. •
The facts alleged in and made the-'basis of the motion to disqualify were developed in the trial of the case now on appeal and relate to what occurred after judgment' in the divorce case had been entered and are as follows:
“Motion for new trial by defendant J. E. Farrell.
“Now comes the defendant and says the judgment in this cause is erroneous and should be set aside for the following reasons :
“(1) The evidence submitted to the court was not sufficient to justify a divorce and did not show any grounds therefor.
“(2) The judgment was procured by fraud on the part of the plaintiff in that the plaintiff induced the defendant to believe that her grief caused her to wish a separation in order that she might compose her mind and consider further what her relations to plaintiff would bé when, in fact, plaintiff only wanted a divorce, knowing that she had no grounds therefor, in order to embarrass the defendant by seeking marriage with another.
“Wherefore defendant prays for a new trial.
“[Signed] J. E. Farrell.”
Testimony of Judge Lattimore given on the trial of the present suit to set aside the property settlement:
“Q. Now, I’ll ask you if John Farrell came to see you, or if you saw him anywhere else after the divorce was granted, and, if so, when? A. Well, the next time I saw Mr. Farrell was later, I can’t say how soon. I know. it was less than ten days because of what I shall relate, but I can’t give you the .exact number of days that it was after the divorce hearing. He came to my office there, and he said that he was not willing for this settlement, this property judgment, to stand, and wanted to talk to me about it.
“Q. Did he say why he didn’t'want it to stand? A. Yes.