To my mind the majority conclusions are without precedent. In the first place, the matters before us involve interlocutory orders made by the trial court during pendency of a divorce suit under Art. 4636, Vernon's Ann.Stats., hence not appealable; and this Court should have sustained appellee's motion to dismiss the cause for want of jurisdiction. The following excerpt from Beckler v. Beckler, Tex. Civ. App. 114 S.W.2d 618, 619, is illustrative of the consistent holdings of our courts on nonappealability of such temporary orders as may arise under title 75, ch. 4 on Divorce; the appeal there being from an order restraining defendant from encumbering or disposing of community property (Art. 4635): "The motion to dismiss the appeal must be sustained. * * * The right to appeal from an interlocutory order must depend upon the statute conferring such right. Pittman v. Byars, 100 Tex. 518, 101 S.W. 789; Bean v. Peurifoy, Tex. Civ. App. 74 S.W.2d 126; Dupree v. Davis, 116 Tex. 405,292 S.W. 523; Dyer v. Dyer, Tex. Civ. App. 87 S.W.2d 489; Shultz v. Shultz, Tex. Civ. App. 28 S.W.2d 223. Our only statutory provision for an appeal from an order granting a temporary injunction is article 4662 of the Revised Civil Statutes. That article is a part of title 76, article 4642 et seq., and expressly limits the right of appeal to injunctions granted under any provision of `this title.' Necessarily, in such a connection, `this title' means title 76. The provision conferring upon the wife the right to an injunction restraining the husband from disposing of real and personal estate during the pendency of a suit for divorce is article 4635, which is a part of title 75, article 4602 et seq., and, therefore, not affected by article 4662." See also Dakan v. Dakan, Tex.Cix.App., 53 S.W.2d 682 and authorities there cited.
But we may pass for the moment any question of appealability. Error inherent in the prevailing opinion goes deeper and is fundamental. It is not within the province of an appellate court to pass upon the merits of an action on appeal from an interlocutory order, nor to consider any matters which do not relate to the propriety of the order appealed from. 3 Tex.Jur., p. 1019; City of Fort Worth v. Invader Oil Refining Co., Tex.Com.App., 238 S.W. 206.
On July 8, 1948, plaintiff filed a sworn petition for divorce against defendant, alleging a cause of action; praying for, during pendency of suit, the temporary relief provided for by Arts. 4635 and 4636, ch. 4, title 75, Vernon's Ann.Sts. On July 16, after a hearing, such ancillary relief was granted, consisting of an order for inventory, temporary restraint against the alleged husband both with reference to *Page 596 communicating with plaintiff and from selling, encumbering or disposing of his real or personal property "during the pendency of the suit." At the hearing, Judge Bush advised counsel that he was there merely to decide whether, under the evidence, plaintiff was entitled to the relief sought, with no final determination on the controlling issue of marriage. Plaintiff then testified to the fact of marriage, date, circumstances, etc., with daughter and daughter-in-law in corroboration as to admissions against interest made by defendant in 1942. At close of all testimony the orders hereinabove mentioned were made.
At such juncture (eight days after filing of suit and jury called for) this Court proceeds to try the ultimate issue just suggested, holding that the testimony adduced on behalf of plaintiff was tantamount "to no evidence" at all and that the record "here presented conclusively shows that the parties were never married or held themselves out as husband and wife." The majority cannot thus finally adjudicate the merits of a cause of action as an incident to the disposition of a preliminary order. I have been cited to no principle of law or authority in support of the particular procedure, depriving plaintiff, as it does, of her constitutional right of trial by jury. It is well settled that on interlocutory appeals, such as from the grant or refusal of a temporary injunction, our power extends no further than to pass upon the trial court's discretion, whether abused or not, with no authority to rule upon the weight or sufficiency of testimony. "* * * If the order was based on conflicting evidence or diverse inferences it will not be disturbed. The evidence is not reviewed for sufficiency as it would be upon appeal from a final judgment, but only to see if it supports the court's exercise or discretion." 24 Tex.Jur., sec. 253, p. 314. Scanlan v. Houston Lighting Power Co., Tex. Civ. App. 62 S.W.2d 537, Writ refused; Kilburn v. Childers, Tex. Civ. App. 86 S.W.2d 832.
The rule just quoted is clearly applicable to the intermediate judicial action contemplated by Art. 4635 et seq. of our divorce laws. Art. 4636 merely requires a "pending suit for a divorce" as a prerequisite for the temporary relief there furnished; complainant becoming entitled thereto almost as a matter of right by the simple filing and presentation to a court or judge of a verified petition for divorce, in which such orders are requested. At least this Court has so held. Mowers v. Mowers, Tex. Civ. App. 32 S.W.2d 1118, contains the following language: "Appellee's petition alleges a valid common-law marriage, legal grounds for a divorce, and prays for a partition of the community estate. It also contains allegations duly verified sufficient, in substance, to warrantthe action of the court in issuing the temporary writ of injunction." (Emphasis mine.) In Wright v. Wright, 3 Tex. 168, sections 6, 9 and 10 of the 1841 Laws, p. 21 (almost identical with present Articles 4635, 4636 and 4637) were under consideration and Chief Justice Hemphill had this to say: "These and other provisions of the statute show clearly that, in the contemplation of the Legislature, the rights of the wife might be endangered during the progress of the suit; and full powers are vested in the court to make all their orders and issue such writs as may be necessary for their conservation. The terms are emphatic, that the wife may require an injunction restraining the husband from the disposition of any part of the property in any manner, and it would seem to be imperative on the courts to issue such writ whenever it may be demanded by the wife. From the language employed, if construed literally, itwould appear that but little discretion can be exercised in determiningupon the application, and that the writ, when desired, would be one ofright, and would issue almost as a matter of course." (Emphasis mine.)
The Legislature, in my opinion, has considered the actual pendency of a sworn petition for divorce as a sufficient warranty of good faith; and the immediate relief provided under the named articles follows, ipso facto, in order that a probable judgment upon final trial be not rendered ineffectual.
Appellant's only answer to the instant petition for divorce is that there has never existed a valid and subsisting marriage. This court, in Dyer v. Dyer, Tex. Civ. App. 87 S.W.2d 489, 490, expressly recognizes *Page 597 that such was a defensive plea for adjudication on trial to the merits. There, to petitioner's prayer for temporary injunction, alimony, etc., defendant interposed the defense of final decree of divorce theretofore obtained in the State of Nevada. Speaking through Chief Justice Bond, we there held: "The crux of this controversy is the validity of a divorce decree granted to the defendant in a district court of the state of Nevada. This controversy is determinable on final trial to thesatisfaction of the court; thus the temporary injunction, preserving the property in status quo and impounding a portion of the defendant's salary and releasing the balance to the needs of the defendant, is clearly made to abide the ultimate determination of the issues evoked in the divorce suit. It follows, therefore, that, if it should be determined ultimately that there exists no marriage, then no right to the plaintiff exists in the impounded funds; on the other hand, if it should be determined that there exists a marriage between the parties and the divorce decree of the foreign state availeth nothing, then the right to the fund may be determined as the court may deem necessary and equitable between the parties; and, on a pronouncement of a decree of divorce, order a division of the estate of the parties in such a way as the court shall deem just and right." (Emphasis mine.)
I am not unmindful of the fact that, through a three hundred eighty-three page statement of facts, defendant here offers the strongest possible testimony in support of his plea. But he will have time enough after suffering an adverse judgment (if he does) in which to make an orderly appeal to this Court where the point can be raised of no evidence to sustain it, or that the jury verdict was so overwhelmingly against a preponderance of the evidence as to be clearly wrong.
Through this voluminous record, as already observed, appellant has indeed made out an impressive case. He argues that there is no right without a remedy, and unless resort may be had to Art. 4662 (providing for an appeal from a temporary injunction) and the controlling issue of marriage accorded a trial in limine, "no single man is safe from suit by a designing woman." This writer (who is no benedict) has an interest like unto that of defendant in having duly safeguarded a status common to us both. However, if placed in a similarly unfortunate position, I would not feel without adequate remedy. The trial court has ample authority to order a severance and separate trial on any plea in bar, and to render judgment solely on the issue tried and found to be decisive of the case. Rule 174(b) reads: "The court in furtherance of convenience or to avoid prejudice may order a separate trial of any * * * separate issue * * * or issues." By recourse to the foregoing rule appellant would have been afforded an orderly trial to a jury on his plea in bar well within the time already consumed by this premature adjudication of ultimate issues. Appellee's motion to dismiss for want of jurisdiction should have been sustained.