101 Tex. 82 | Tex. | 1907
delivered the opinion of the court.
This is a certified question from the Court of Civil Appeals for the Second District. The statement and questions are as follows:
“This appeal is from a judgment rendered against appellant in a habeas corpus proceeding instituted by him to recover from the appellees the possession of Ima Campbell, a girl of five or six years old and his only child, who was alleged to be unlawfully restrained by them. The court not only denied him any relief but enjoined him from disturbing appellees in their possession of the child. The litigation grows out of a most shocking and deplorable domestic tragedy, in which the wife of appellant, who was the mother of this child and three others, shot to death all but this one and wounded her and then took her own life. The tragedy was of course due to insanity. Res ipsa loquitur. The place of the tragedy was the home of appellant near Tucumcari, New Mexico, where he resides still, and the date, June 13, 1905. Soon thereafter appellees obtained possession of the child in question and brought her to their home in Stephens County, Texas, where she has been well provided for and taken care of as a member of their family ever since, appellee’s wife being a sister of the child’s mother.
“As to the nature and circumstances of the delivery of the child to the wife of appellee and to Mrs. Ellerd, another sister, who also resides in Texas and, with her husband, was present when the child was delivered, the evidence was conflicting; the testimony offered by the appellees tending to prove that appellant gave his consent for said sisters to bring the child to Texas and keep her here permanently, and that offered by appellant tending to show that the child was to be returned to him whenever he called for her.
“As to whether it would be better for the child to restore her to her father or leave her with the appellees, a large volume _ of testimony was offered on both sides, and it appears from a recital in the judgment, there being no other finding of facts, that the court determined this issue in favor of the appellees.
“By numerous witnesses of high standing in Texas who had known appellant while he lived here before he moved to New Mexico, and also by the same class of witnesses in New Mexico who have known him there, appellant established for himself the reputation of a good citizen and a moral, sober man, who was kind to his family, and provided reasonably well for them. Two witnesses, however, a man and his wife, who had known appellant in New Mexico, testified to circumstances tending to show that at times appellant had treated his wife and children in a very rough manner, going so far on one occasion as to knock his wife down. This was denied by appellant, but he did admit striking her when greatly provoked by her.
“The evidence made it clear that the appellees were in every way suitable to have the care and training of the child, and that their home and community afforded a better environment for her, apparently, than the home of appellant in New Mexico. The only circumstance offered to the contrary was the fact that the wife of
"Questions certified.—First. Was Ima Campbell illegally restrained by the appellees?
"Second. If not, did the District Court of Stephens County have jurisdiction to determine the controversy between appellant and appellees as to whether it would be to the best interests of the child to leave her with the appellees or return her to the care and custody of appellant; it being intended by these questions to have the Supreme Court determine whether or not the domicile of the child remained that of her father in New Mexico, after the transaction in which the child was turned over by the appellant to the appellees? Involved in this question also, perhaps, is the question of whether we should treat the judgment, which is silent on the subject, as a finding in favor of the appellees on the matter of conflict between them and appellant as to the nature of that transaction?” In the case of Lanning v. Gregory (100 Texas, 310) we held that the District Court of Hunt County was without jurisdiction to determine the question of the custody of the child in controversy in that case. But in that case the custody of the child had been judicially determined, and he was in the temporary custody of the father who was domiciled in the State of Louisiana—residing with a sister of Banning, the defendant in the suit. The child had been brought by the sister to Dallas, Texas, on a temporary visit. The mother who was plaintiff in the proceeding, had married again and was resident in another State. This case is quite different. Here the father, according to all the testimony, had consented to its removal from Hew Mexico to Texas to be in custody of its aunt, a sister of its deceased mother. So far as this immediate question is concerned, it is unimportant whether the custody was to be permanent or whether he reserved the right to a revocation of the arrangement—a question upon which there is a conflict of evidence. The child was in Texas and was temporarily resident here, and that in our opinion is sufficient to give the courts of Texas the power to determine the question of her rightful custody.
The trial judge having filed no conclusions of fact, we also think that upon appeal, it should be held that he had found every disputed fact in such way as to support the judgment; that is, that the agreement between him and his sister-in-law was, that she should have permanent custody of the child.
We think the question of the illegal restraint of the child, was the question to be determined by the suit, and that it was properly brought for a decision of that question.
We also think that the District Court of Stephens County had jurisdiction to determine the controversy between the appellant and the appellees as to whether it was to the best interest of the child to leave her with appellees or to return her to the custody of appellant. We are also of the opinion that the judgment should he treated as a finding in favor of appellees upon the conflict in the testimony as to the nature of the original transaction, in which the custody was given to appellees.