123 S.W. 204 | Tex. App. | 1909
On the application of Ellen Fuller, alleging that she was the mother, and therefore entitled to the control and custody of Mary E. Fuller, a girl about fourteen years of age, and further alleging that said Mary E. Fuller was illegally restrained of her liberty by Aaron and Lucindy Graham, Hon. W. C. Buford, judge of the Fourth Judicial District, issued a writ ofhabeas corpus, directing the sheriff of Harrison County, where said Mary E. Fuller was alleged to be, to take and bring her before him on May 9, 1908 — "to be dealt with according to law," the writ recited. In the meantime, to wit, on April 27, 1908, Aaron and Lucindy Graham filed an answer to the application for the writ, in which they alleged that four or five years before the writ was issued the relator and the father of the child had placed her with them; that they had become attached to her; that they were capable of doing so and were willing to provide for, maintain and educate the child; that her parents had permanently separated and were living apart from each other, and that the relator was "mentally, physically, morally and financially unable and unsuited for the care and custody of said child." At the time specified in the *219 writ, said judge, in chambers, "after," it is recited in his order, "hearing the pleadings, evidence and argument of counsel, . . . adjudged and decreed . . . that the said Mary E. Fuller remain in the care, custody and control of the said Aaron Graham, and that the petitioners herein, Harry and Ellen Fuller, . . . pay all costs in this behalf incurred." The original application for the writ was filed with the clerk of the District Court of Harrison County on April 14, 1908, and, it seems, was entered on the trial docket of said court as cause No. 447. The answer of the respondents was filed with said clerk on April 27, 1908. Afterwards, to wit, on April 17, 1909, R. H. Fuller, who, it seems, was the person mentioned as Harry Fuller in the order of the judge above referred to, and who was the father of Mary E. Fuller, and the said Ellen Fuller, filed with the clerk in said cause docketed as No. 447, a writing purporting to be an amendment of their original application for the writ, in which they alleged that, at a time not specified, when the respondent Lucindy Graham was sick and needed her assistance, they permitted the child to go and live with the said Lucindy and Aaron Graham for the purpose of waiting upon and attending to the said Lucindy; and that after she got well the said Lucindy and Aaron refused to permit the child to return to her home. The relators further alleged in said amended application that they were able to "rear, educate and care for the said Mary," and prayed that "upon a final hearing thereof they have judgment restoring to them the possession and custody of the said Mary E. Fuller," and for "general and special relief." April 20, 1909, the respondents filed a plea setting up the order of the judge made in vacation as aforesaid as res adjudicata of the case as made by the amended application. On the same day the court rendered a judgment sustaining the plea and dismissing relators' application. The appeal is by the relators from the judgment of the court dismissing their suit.
After stating the case as above. — The contention of the relators is that the order made by the judge in vacation, because it was so made, necessarily was an interlocutory and not a final judgment, and therefore that it could not be pleaded in bar of their right to the relief they sought. The argument seems to be that because an order so made can not be appealed from (Pittman v. Byars,
In the case before us the action of the court below is questioned on the ground alone that the judgment rendered by the judge in vacation, because it was so rendered, was not a final one, and therefore could not be held to operate as a bar to the relief sought. In the light of the authorities cited in this opinion, and others which might be referred to, we do not think the contention should be sustained. Therefore the judgment will be affirmed.
When the case was first before us it was urged by relators as a reason *223
why the judgment should be reversed that they had been deprived of a trial by a jury. On the record as made for this court it did not appear that relators had demanded a trial by a jury. It is clear that, before they could predicate error on such a ground, they must have demanded and been denied such a trial. With reference, however, to this insistence of relators, without expressing approval or disapproval of the conclusion there reached by the court, we again direct attention to the case of Pittman v. Byars, 51 Texas Civ. App. 83[
Affirmed.