125 S.W. 349 | Tex. App. | 1910
Mrs. Sue Cobb sued Mrs. Ecke Works to recover custody of plaintiff's minor child, Marie, and from a judgment in favor of the defendant Mrs. Cobb has appealed.
With plaintiff's consent the child had been in defendant's custody for several years, and when the mother sought to regain such custody her demand was refused by the defendant upon the plea that plaintiff was not a proper person to rear the child and that the welfare of the child would be best subserved by leaving her in defendant's custody. Such was the defense urged by Mrs. Works upon the trial, and the case was tried upon the issues thus made.
The only action of the trial court of which appellant complains is the refusal of the following instruction of the jury requested by the plaintiff:
"Although the evidence may disclose the fact that plaintiff did at one time lead an improper life, yet, if the proof shows that she has reformed and is now living a correct life in a reputable portion of the city of Ft. Worth, and is otherwise prepared to care for and educate her minor child, she would be entitled to its custody."
A material issue to be determined was whether under all the facts and circumstances in evidence it would be to the best interest of the child that her custody be awarded to the plaintiff or to the defendant. Legate v. Legate,
The jury found that the custody of the child should be awarded to defendant, and this, too, absolutely and without any restriction, and *548 the judgment first rendered was in conformity with that finding. On a subsequent day of the same term the trial judge overruled plaintiff's motion for a new trial, but in the same order and upon his own motion decreed that plaintiff should have the custody of the child during the month of July of each year. From this latter decree defendant has appealed, and by an assignment of error duly filed contends, in effect, that as the trial was by jury, the judge was without authority to pass upon the issues of fact, and in the decree last rendered he necessarily invaded the province of the jury. This assignment is well taken and must be sustained.
But we can not concur in the further contention presented by defendant that judgment should be now rendered by this court in accordance with the verdict of the jury and as the trial court originally decreed. The legal effect of the decree last entered was to set aside the verdict and former judgment in part. In modifying the former judgment, evidently the judge deemed the evidence such as to show that the plaintiff was a fit custodian of the child for one month in each year, and that to that extent the verdict and judgment rendered thereon should be set aside. If not satisfied with the former judgment he had authority to vacate it. If he vacated it in part, necessarily he vacated it in its entirety, as there can be but one final judgment, and the case being on the jury docket, the judge could not adopt the verdict of the jury upon some of the issues of fact and determine other issues himself. St. Louis S. F. Ry. v. Smith,
Accordingly, the judgment of the trial court as finally modified is reversed and the cause remanded for another trial.
Reversed and remanded.