Appellant on November 5, 1913, sued A. J. Swearingen, S. G. Tayloe, S. J. Brooks, William Cassin, P. H. Swear-ingen, M. H. Burris, and Z. W. Cannon in district court of Bexar county, Forty-Fifth district. Hon. S. G. Tayloe, judge of said court, certified his disqualification to try the ease, and requested Hon. W. F. Ezell, judge of the district court of the Seventy-Third district to try the same, and thereafter, by mutual consent and agreement, an order was entered transferring the cause to the district court of said Seventy-Third judicial district.
Plaintiff alleged: That on November 17, 1905, A. J. Swearingen filed suit against Lela Swearingen, plaintiff herein, in the district court of the Forty-Fifth judicial district of Bexar county, praying for divorce, and for division of community property, the alleged ground for divorce being cruel treatment of such character as to render their further living together insupportable to said A. J. Swearingen; that on January 29, 1906, a decree was entered in said cause divorcing A. J. and Lela Swearingen, and vesting in A. J. Swearingen all the community estate; that A. J. Swearingen had not resided in Bexar county for. six months next preceding the filing of his said petition; that the return upon the citation in said suit is untrue, no copy of the same having ever been delivered to Lela Swearingen, as therein stated; that the decree in said suit was wholly based upon testimony which was untrue; that Lela Swear-ingen was not guilty of any cruel treatment towards A. J. Swearingen; that they were married on December 9, 1889, and resided near Sonora, Tex., until the fall of 1904, three children being born to them, and they accumulated community property valued at from $25,000 to $50,000; that, several months prior to the fall of 1904, A. J. Swearingen conceived a scheme to get rid of Lela Swear-ingen and their children permanently, and to keep the bulk of the property, the true facts of which scheme were not learned by her until in the summer and fall of 1913; that such scheme was to induce her to agree to the sale of their property under the pretense that he wished to remove to California, near where her eldest brother lived, and invest the proceeds of such property there; that, relying upon such representations, she acceded to his request, and executed deeds conveying their residence and business homesteads ; that the remaining community estate was sold; that A. J. Swearingen received for the property sold cash amounting .to between $25,000 and $50,000; that he shipped their household goods to California and proceeded with her and the children to Ft. Worth, where he informed her he would no longer live with her, and that she and the children must go to California without him, but that he intended to permanently provide for and support them; that he purchased tickets for them at an expense of about $200, and gave her $600 in cash; that, by reason of such representations and of the fact that she had no other place to go, there being an estrangement between her and her parents, as he knew, she was induced and caused to comply with his Command and to go to California with the children; that, after reaching California, she received letters from him informing her of his desire to be divorced from her, and requesting her to sue for divorce in California, but she declined to do so; that in the fall of 1905 she received a letter from him requesting her to meet him in El Paso, but for her to leave the children, in which let*17ter lie represented that lie desired such meeting because he intended to make a fair division of their community estate; that he knew she would by that time have been compelled to expend the money he had given, her, and he did not intend to have a fair division, but to get her into Texas, so that citation might be served upon her in said cause, and to take advantage of her necessities to procure an unfair division; that she came to El Paso and brought the children with her, meeting him on No.vember 20, 1905, when he told her he had sued for divorce, and again represented that he intended to permanently provide for her and the children, in addition to what he would give her in the division of the community estate, and also represented that he had invested and lost all of such estate except about $1,200, which he offered her on condition that she should sign an agreement reciting that she had received and accepted $2,000 as her part of such estate; that she was induced by said representations to accept his offer and sign the agreement; that said representations were untrue, as he had not lost such property, and did not intend to support her and the children, and, in fact, never contributed anything further towards their support; that, when the decree was entered, much of the community estate was outside the state of Texas, and that within the state was not particularly described therein, and, if such decree is not void for uncertainty, it failed to divide the community property fairly, and did not dispose of the custody of the children; that she did not, and could not, by the exercise of ordinary and due diligence, discover the facts showing that a judgment of divorce had been illegally obtained against her until the summer of 1913, nor did she discover the facts showing such fraudulent conduct of A. J. Swearingen until that time; that, had a fair and equitable division been made, she would have received about $15,000 or $20,000 worth of property; that at the time such decree was entered the community estate was held by various persons for said A. J. Swearingen, and since then, by sales, exchanges, and transmutations of value, the same has become of the value of about $100,000 to $150,000. The property is described in the petition, and it is alleged that the defendants other than A. J. Swear-ingen claim some interest in a tract of land containing 4,345 acres, for which reason they are made parties, in order that their interests may be determined and set apart to them. Plaintiff also sets up a cross-action for divorce, provided the decree aforesaid be set aside. She prayed that a receiver be appointed to take charge of all property held by A. J. Swearingen in which she has an interest; that alimony be allowed her pending the suit; and that a temporary injunction be granted restraining him from disposing of any of said property pending the suit. She prayed further that, upon final hearing, the decree of divorce be set aside, if the court can grant her a divorce, and', if not, then that the decree of divorce be permitted to stand, but that she be granted the custody of their minor child, Susan, and that the portion of the decree vesting the community estate in A. J. Swearingen be set aside, as well as all instruments to that effect, and judgment entered dividing such estate and adjusting their property rights.
Copies of the citation and decree are attached as exhibits. The return on the citation is regular; the sheriff stating that he delivered to Lela Swearingen a copy of the writ, together with a certified copy of the petition, on November 21, 1905. The judgment recites service by personal service, and contains a copy of the agreement made between the parties at El Paso on November 21, 1905, in which it was stated that they separated on November 26, 1904, intending that the separation should be final, and that A. J. Swearingen had filed suit for divorce on November 17,1905, in the Forty-Fifth district court of Bexar county, and that a division of the community property is agreed upon at the special request of Lela Swearingen.
A. J. Swearingen filed a general demurrer and special exceptions urging the two and four year statutes of limitation, also that plaintiff is estopped form reopening the decree on account of her laches. He answered that he had again married; that by his second wife he had two children; that all property he owned was community property of such second wife and himself; and that his wife is a necessary party to the suit. He prayed that no^ temporary order of any kind be granted.
The other defendants answered, alleging that' they jointly owned a half interest in the 4,345 acres of land described in the petition, and A. J. Swearingen the other half interest; that they owe about $65,000 upon said land; and that, if a receiver be appointed or an injunction issued, it would probably result in the loss to them and A. J: Swear-ingen of said land, as a part of the purchase money would be due in January, 1914, and it would be necessary to arrange to meet the same.
The court, on November 19, 1913, entered an order refusing to grant the application for a receiver, or the issuance of a temporary injunction, or alimony. Plaintiff appealed from such order.
[1] The assignments complaining of the refusal of the court to appoint a receiver and to grant alimony are without merit, because no. appeal is permitted from ifiterlocutory orders of that character. Articles 2079, 2080, Rev. Statutes; Turner v. Turner, 47 Tex. Civ. App. 392, 105 S. W. 237. The only question requiring consideration is whether the court erred in refusing to giant a temporary injunction.
[2] Article 4638 provides that at any time during a suit for divorce the wife may, for the preservation of her rights, require the is*18suance of an injunction restraining her husband from disposing of any part of the real and personal estate in the possession of her husband. The Supreme Court, in the case of Wright v. Wright, 3 Tex. 175, construing said, article, said: “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, it would appear that but little discretion can be exercised in determining upon the application, and that the writ, when desired, would be one of right, and would issue almost as a matter of course.” See, also, Turner y. Turner, supra.
' This is a suit in equity to set aside a judgment for divorce; the prayer on the issue of divorce being conditional, as is shown in óur statement of the pleadings. The judgment is attacked upon two jurisdictional grounds; one that, at the time A. J. Swear-ingen filed his petition in said cause, he had not resided in Bexar county for six months next preceding such filing; the other that no service of citation was ever, in fact, had upon Lela Swearingen. Taking the first allegation as true, the court should not have entertained the suit, and would not now entertain the suit if the same had up to this time remained on the docket without a trial, unléss A. J. Swearingen filed an amended petition. Michael v. Michael, 34 Tex. Civ. App. 630, 79 S. W. 74; Dickinson v. Dickinson, 138 S. W. 205; McLean v. Randell, 135 S. W. 1120. Conceding, therefore, only for the purposes of this appeal, that the petition makes a prima facie case for setting the judgment aside upon that ground, it would become the duty of the court not to entertain the petition, but to dismiss the same because of want of jurisdiction. The ■ question then arises whether appellant can keep it from being dismissed by reason of having filed'a cross-action, in which she does not allege that she, at the time of filing the same, had been an actual bona fide inhabitant, of the state for 12 months and of Bexar county for 6 months next preceding such filing, as required by article 4632 as amended by chapter 97 of the Acts of 1913. Appellant relies upon the case of Charlton v. Charlton, 141 S. W. 290. In that case no issue was made as to the jurisdiction of the court to try plaintiff’s case upon the merits, and, having acquired jurisdiction, it was deemed proper to permit defendant to assert a cross-action without alleging the matters concerning residence required, of a petitioner who is plaintiff. We think the decision was correct, but we will not hold that, when neither the plaintiff nor defendant has the qualifications as to residence specified in the statute, the court can grant a divorce. If the plaintiff’s petition cannot 'be entertained, the court has no jurisdiction to pass upon the merits of his case, and a cross-action could not be entertained unless the same contained the allegations as to residence which are required of a party if such party is plaintiff. Note to Succession of Benton, 59 L. R. A. 149; Fisk v. Fisk, 24 Utah, 333, 67 Pac. 1064; Abele v. Abele, 62 N. J. Eq. 644, 50 Atl. 686; Pine v. Pine, 72 Neb. 463, 100 N. W. 938, 9 Ann. Cas. 1198. The petition therefore, taken as true, presents facts such as would not authorize the court to grant appellant a divorce if the judgment be set aside.
We conclude, therefore, the court was justified in holding that under the facts shown to exist by the sworn petition, the benefits given solely by the laws relating to suits for divorce could not be invoked by Lela Swear-ingen.
The petition, when considered in connection with our general injunction statute, presents no case for relief by injunction. It is not made to appear that A. J. Swearingen is doing any act respecting the subject of litigation, or threatens or is about to do some act or is procuring or suffering the same to be done in violation of the rights of appellant which would tend to render judgment ineffectual, nor that irreparable injury is threatened to real or personal property. All the property described in the petition, except two vendor’s lien notes aggregating about $8,000, consists of real estate situated in Bexar county, and we infer from the allegations that the record title of all of same is in appellee. The filing of lis pendens notice could be, and doubtless has been, resorted to by appellant to protect herself against transfers of such real estate, which, it appears from the allegations, is of great value.
In addition, courts do not look with favor upon suits to set aside a divorce decree brought eight years after the rendition of such decree, and after the party procuring same has married again, and has children by such marriage, and a strong showing should be made before an appellate court would be justified in holding that the trial court abused his discretion by refusing a temporary inj unction.
The judgment is affirmed.