Cooksey v. Cooksey

40 S.W.2d 947, 1931 Tex. App. LEXIS 1252

• Court: Court of Appeals of Texas
• Decided: June 25, 1931
• Docket: No. 2549.
• Status: Published

Opinion

HIGGINS, J.

Appellee brought this -suit against the appellant for divorce. Upon trial without a jury judgment was rendered in the plaintiff’s favor. It is assigned as fundamental error that the petition is subjefct to general demurrer. The record does not disclose that the demurrer was ever presented to the court and action thereon invoked. The demurrer is therefore considered as waived. But aside from this, the petition in general terms alleges criiel treatment of such a nature as to render the parties living together insupportable, and it has been recently held by the Commission of Appeals that general allegations of this nature are sufficient as against general demurrer. McCullough v. McCullough (Tex. Com. App.) 36 S.W.(2d) 459.

It is also assigned as error that the evidence is insufficient to sustain the action and judgment.

We have examined the evidence and are of the opinion it warranted the finding of the trial court that the defendant has been guilty of cruel treatment of such a nature as to render their further living together insupportable and supports the judgment rendered. Ingle v. Ingle, 62 Tex. Civ. App. 205, 131 S. W. 241; Caywood v. Caywood (Tex. Civ. App.) 290 S. W. 889; Rauch v. Rauch (Tex. Civ. App.) 237 S. W. 334; Swift v. Swift (Tex. Civ. App.) 37 S.W.(2d) 241; McCullough v. McCullough, supra.

There is no merit in the appellant’s position that the divorce cannot be granted on the uncorroborated testimony of the plaintiff. Wynn v. Wynn (Tex. Civ. App.) 251 S. W. 349; Tinnon v. Tinnon (Tex. Civ. App.) 278 S. W. 288.

But for that matter the facts and circumstances reflected by this record sufficiently corroborate the .testimony of the plaintiff.

The other matters referred to in the appellant’s brief are without merit and call for no discussion.

Affirmed.