*1 Ex Lillаrd. Parte Lee June A-6835. Decided No. Rehearing July Overruled (314 800) 2d Series Harris, Arlington, & Reeves and Jack E. Harris re- lator.
Clyde Clyde Worth, Al respondent. & Barnes and of Fort delivered the the Court. Mr. Justice Norvell Judge April, 1958, the the 25th of of the District Court District, County, 153rd Judicial entered an order court, styled Imagene on the docket said No. 4965-c in Cause wife, Jean Lillard in which Lee he found Lillard prior had violated of said court dated relating custody of Lillard, Jr., John S. a nephew son five-year-old minor accordingly ordered said Lillard Lee Lillard. It was county jail *2 contempt of court and held committed long period days County three and “as there- Tarrant of after and until such time as the said Lee Lillard thereafter wilfully completely purge himself from of * * court granted to file leave writ corpus, habeas and admitted Lillard to bail of the cause. corpus prayed
The writ of habeas as for and will issue discharged relator will be from the of the Sheriff County, Texas. are of the the District We County, Court of Tarrant Texas was without 7, prior attaching render the order 1957 because of and exclusive of the Juvenile District County, Texas to fix and determine the custodial status Lillard, of the parte Eaton, minor John S. Jr. Ex Texas 151 581, 252 2d S.W. judicial history рresent controversy is somewhat
complicated by setting per- best understood forth the chronological tinent events in order. Imagene February plaintiff
On granted 1956 Lillard was a divorce S. Lillard in Cause No. on the 6304-G/J docket of the Juvenile District Texas, Court of Dallas part hereafter referred the Dallas Court. That of the relating decree parties minor son of the as follows: ORDERED, “IT IS FURTHER ADJUDGED AND DE- granted custody child, CREED THAT Plaintiff be John S.
Lillard, Jr., long as the child is left in the home of Mr. and Arlington, Mrs. Lee Lillard of Texas. It is ordered this Court the said child remain the home of Mr. and Mrs. Lee guidance Lillard under their until further orders from this Court.” 3, 1956 the Dallas
On June Court entered an directing possession of Dallas to take the Sheriff of the child and over to Mr. and Mrs. Lee Lillard. Evidently turn him at this developed controversy had time some concerning the infant and Lillard had home of child from the Mr. taken the Mrs. Lee Lillard.
20 pleading September 1 Lillard filed designated as a “Motion for she Court which Lillard, Jr., change child, of residence of the minor John S. and/ pleading was filed under judgment.” amendment While the suit, given the divorce the same docket number as that of a new we think it must be considered as the institution relаting changing purpose had for of the order its minor, Lakey Mc- Jr. v. John S. Webb, Carroll, parte 2d Ex Texas 855; Black, App., 2d Black Texas Civ. S.W. history. pleading 2d no In this writ affecting alleged that a of conditions place divorce had taken since rendition of said minor given and that she should be “full decree *3 any She qualifications conditions whatsoever.” child without or cause, appеar prayed and show be cited to that John S. Lillard be, placed In her cus- any why if tody. not be there child should (The evidently amended motion. mentioned an motion Change designation Resi- “Amendment to Motion copy A top page at the of the first thereof. dence” among Judge filed docket entries of the following: papers case discloses File Motion residence. 9-11-56 Privilege File Plea of 9-19-56 as to Lee Lillard
9-20-56 Non-suit File Amended Motion 9-25-56 granted leave to amend and make Plaintiff movant
9-27-56 parties. new pleadings or orders mentioned in the above None us. It be that Lee Lillard entries are docket original “motion,” plea privilege filed
party to be County, place of his residence and was sued in Tarrant He party from the suit. was nоt a dismissed thereafter 25, 1956, although September purpose thereof “motion” requirement abrogate decree that the towas minor child remain in and Mrs. Lee Lil- the residence Mr. lard.) dismissing February 26, Imagene Lillard,
On without September 25, her suit motion filed in Dallas Court on 1956,2 against Lillard, filed suit Lillard and wife Jean County, District, the District Court of Tarrant 153rd Judicial sought hereinafter referred as the wherein she child, Lillard, full custodial in and to the minor John S. Jr., against husband, Her named defendants. John S. Lillard, was not as a named defendant in this suit. cause wfas docketed Cause No. 4965-C. 4965-C,
In their answer3 filed in Cause No. defendants Lee pleaded Lillard and wife abatement there was pending identically in the Dallas Court “for the same cause of action; dispute, matter is in Lillard, pending; plain- Jr. That the cаse is still that the plaintiff tiff that suit is the same as in this suit and the Court Texas, gave plaintiff in Dallas leave to amend bring that cause to in Mr. and Mrs. Lee Lillard.” May 24, 1957 John S. the defendant in the case (Cause in the Dallas G/J) ap- No. 6304 an plication temporary restraining prevent Imagene order to taking Lillard from the child from the home Mr. and Mrs. *4 restraining Lee Lillard. This prayed order was issued as for temporary injunction application and the 14, for set for June 7, hearing On June the Tarrant after a which place May 24, (according took on to the recitations of the judgment) rendered decree Cause No. 4965-C which care, complete custody awarded full and and control of the minor to Lillard and ordered Lee and wife to possession deliver the child to Lillаrd forthwith. given appeal this appeal Notice was but no perfected. by filing 1.—The date of is not shown atatched exhibit to answer Wright, respondent given Sheriff of Tarrant Texas. Harlon The date is upon petition appearing an attached that affidavit to which we assume was filing. the same the date of mentioned, September 25, between the dates that 2.—Sometimе 1956 and Febru- attorneys changed ary 26, Imagene Lillard and secured new counsel to represent her. by copy date of the of this answer 3.—The thereof. disclosed the certified order to the issued an 1957 the Tarrant Court On June County that Lee it was recited of Tarrant Sheriff holding forcibly minor were Lillard and wife Jean Lillard child, Lillard, Jr., despite order the Court’s of June S. John Imagene Lillard. dеlivered to that the child be forthwith custody physical the child to The sheriff was ordered take Imagene Lillard. him and turn over restraining application an additional for On June against Imagene filed in the Dallas Court Lillard was Lillard, alleging intended to attorney that she an for John S. the state and thus defeat take the child out of prayer in- application, in addition of the court. This hearing hereof, relief, junctive requested “that on final placed Mr. and Mrs. permanently with said child be legal custody alternative, or, of said in the authorities, County placed Juvenile child with the Dallas placed with physical with Mr. Mrs. Lee (Ima- privileges plaintiff specific visitation and reasonable restraining Lillard) gene order was issued herein.” The tempo- upon prayed for and the injunction rary was set for June an amended Lillard filed on June 1957 John S. Also reply pleading Lil- answer4 in September 25, wherein she 1956 in the Dallas Court
lard provision sought contained the child a modification of alleged amended answer divorce decree. This in the suffering required palsy from cerebral way cross-action, By constant medical attention. sought to the child the custodial have permanently or “in the placed and Mrs. Lee Lillard with Mr. legal alternative, placed with physical authorities and that Juvenile placed Mr. and Mrs. Lee Lillard.” This with said child be attorney applica- signed filed the who answer was injunctive relief above mentioned. tion for *5 re- Dallas entered an order June On by person citing appearance Lillard in at- of John S. Imagene hearing upon Lillard and torney, of notice of service Imagene part. court found that Lillard had her default on removing by of the court the child previous violated Lillard; child and Mrs. Lee of Mr. Lillard is not before us. of John S. 4.—The answer need immediate medical attention and decreed Davis, Officer, legal County have Sam Probation Chief child until further order of the court. July 2, On 1957 John motion which re- filed issuing directing sulted in an order sheriff Courts any county Texas, wherein the child State found, physical possession to forthwith take the of such child Officer, County, him to deliver “the Chief Probation Texas, desig- or whomever the Chief Probation Officer’s Office should have of said child.” nates
Sometime after the rendition of the Tarrant Court gained possession on June of the child and took him Davis, from Texas to the State California. Sam the Chief Probation Officer Dallas to whom Court, of the child had attempted been awarded the Dallas gain physical possession by legal success to without through means the California authorities. April Lillard, On 1958 John S. Lillard and apparently acting supposed right arising under some claim of from the Court, gained possession orders of of the child and took him from the Antioch, residence Lillard in They him California child to returned to Texas. then delivered the Davis, County. Sam the Chief Probation Officer of Dallas undoubtedly This action constituted a violation of the decree of the Tarrant Court of 1957 which complete custody awarded full and of the child to Lillard. April
On 1958 the Tarrant Court rendered its judgment as heretofore mentioned. May 5, 1958 the Dallas Court5 refused an corpus by Imagene
writ of habeas Lillard to had award which theretofore been made Davis, to Sam County. of Dallas Officer Chief Probation order was en- County pro- District of Dallas tered the Juvenile a ceeding styled given Lillard v. John S. but (58720-Juv.) different number from that of cause divorce case. judicial proсeedings -Although all in Dallas were had in the Juvenile 5.— judges signed that at least three
District orders in the cause judges handling county’s juvenile system rotation of under docket. *6 presents district courts of coordi record a case of two
The issuing subject nate'power conflicting as to an identical orders to of the child matter. The Dallas has awarded Court County. Tar- Davis, The of Dallas Chief Probation Officer Sam mother has rant Court awarded to lack the child. or of these decrees void for One the other jurisdiction subject first of acquired of the matter. As the Court subject jurisdiction it follows that of the matter Sheriff, Ry. Lewis, void, Tarrant decree is Texas Trunk Co. v. 647; Norton, App., 29 Com. 81 Texas 16 S.W. O’Neil v. Texas legally held in and Lee be 2d Lillard cannot S.W. violating Eaton, parte Texas a void decree. Ex case) (as did in this 2d “One cannot S.W. personal jurisdiction deal with the invoke the of the court to deny person a child the same time status or and at court, proceeding, the child’s power in that to do with of the for the person his to the court or status whatever Norris, 152 Texas interest of the child.” v. best 256 Knollhoff 2d language paraphrasing quoting and of the contained Some Ward, leading in this case of Court’s Cleveland 1063, 1071, now dispose of the case will so-called “motion for us. Lillard filed her before When change in- she of residence of minor child” in the of the jurisdiction the status voked the by the This occurred minor child from that fixed divorce decree. September 25, 1956, long any proceedings were had filing con- this motion must be in the Tarrant Court. pur- action which had for its sidered the institution of a new custоdy provisions in the pose of the contained the modification original judgment. Undoubtedly and after the of this grant prayer was authorized motion the Dallas Court disposition petition other or motion make the custody pleadings might justified under matter hearing. time upon a Lillard at no the facts disclosed proceedings which sought discontinuance ignored unfortunately although perhaps instituted, she she had appear placed in and failed she motion court action which of her minor child. as to at the time set for upon proceed- her institution attached Since elementary ings the rule could proceedings by subsequent in another away or arrested taken having acquired first could court. The Dallas litiga- dispose the whole matter of it to exercise child) adjust of the minor all (the status tion custodial *7 parties. the the action asserted equities The causes of facts of the same the out Dallas Court and Tarrant Court arise pro- that the It follows and involve the same matter. ceedings by the Dallas Court were abated the Tarrant Court suit subsequent “The of the suit. reason abatement of the first, comрetent jurisdic- the latter is in a court of the where attached, the suit jurisdiction tion and that that when has is general brought, thereby segregated is it from the is as were authority belonged, class to the which it withdrawn from and jurisdiction power.” Since and of all other courts of co-ordinate case, particular jurisdiction the Tarrant this Court “had no necessarily void, judicial what done thеrein was action jurisdiction without is void.” excerpt In following Cleveland v. from Freeman Ward Judgments (Vol. 335) approval : quoted with Sec. impossible can, time,
“It seems two at courts possess power to make a same final determination of the controversy parties. authority between the same If either has act, exclusive, necessarily its must action and therefore judgment it is our na- whenever either the state or the parties tional courts acquire of an action thereto, diminished, destroyed, this cannot be suspended by parties bringing one of the an action in another court, any judgment and that or order the latter is court void so far any judgment as it conflicts with or order court acquiring jurisdiction.” first
That Court then continued: “This extract from Freеman we states sound believe rule, only prevent rule which will races from court by vigilant counsel, discloses, court as this record and that judicial power conflict in here, the exercise of in evidence system. we contemplated judicial believe was never our under controversies, are multiply Courts erected to settle not to them. any rate, At adopt, thе rule announced we Freeman is the one Lipscomb
and is consistent with that declared Justice State, Case, in 1852 in the Burdett cited above v. 9 [Burdett Texas 43].
“What has said is been conflict with the doctrine of pendency jurisdic- various of a suit in cases another abatement, seasonably pleaded plea must tion may judment waived, by default, and that final inor suit prior of a pleading prtiof pendency absence Burnley, 11 Wall. of Cook v. will cases be sustained. See Blasingame Burnley, 97; 29; 20 L. Ed. Cook v. 900; (Texas) v. Cattlemen’s Cattlemen’s Trust Co. 574; Blassingame (Texas App.) Civ. Trust Co. (Texas App.) S.W. 1138. McCoy Civ. v. Bankers’ Trust Co. See, also, Ruling Law, pp. Case that, opinions authority proposition are
“These predicated upon state of pendency prior since the аnd, facts, seasonably alleged proved, the facts must be subsequent done, this is unless *8 upon jurisdiction any fact. fact of as other conclusive the 660, (5th Judgments Ed.) Freeman on Vol. Sections against that, the conclusion nec- This does not militate our once proven, essary pleaded facts or shown are and admitted record, case, undisputed subsequent the as this the suit is in jurisdiction.” and its void for want of abated orders overruling Ordinarily remedy of a the for the erroneous plea by appeal. another is But is not the suit this situations, Wheeler, remedy all in Receiver v. Wil- exclusive liams, Judge, 2d District 158 Texas Revival, 91, particularly Sec. Texas Jur. Abatement here, conflicting judgments of co- when as issued courts jurisdiction ordinate have resulted. In this situation seems lacking jurisdiсtion that obvious inoperative. must be considered suggested only possible that
The distinction can be proceedings in the Dallas those in the Tarrant Court and parties. upon document- rests the difference in Here the Court ary accompanying up of exhibits record made not corpus and the answer is for the writ thereto habeas might original pleading clear Dillard’s be desired. arrangements seeking change us. is It party that Lillard was made thereto subse- be Lee suggestion quently There is some made in Dil- dismissed. plea in lard’s that abatement filed in the Tarrant Court granted bring Dallas in new Court Lillard leave parties again party so made a to the could proceeding. entry There Dallas also an on the docket indi- cating plea someone, presum- privilege was filed ably may be, not a Lee Lillard. However that Lee Lillard was party suit divorce parties, Lil-
child as between the Lillard and lard, gave originally was no custodial fixed. decree wife, simply provided to Lee Lillard and as a condition his but to the award should Lillard that the child remain in the residence of Mr. and Lillard. It was a condi- Mrs. provision tion much thе same as the more usual jurisdic- shall remain within within the the State or changed proper proceeding tion of the court. It could in a competent jurisdiction parties a court of in a suit between jurisdiction court decree. Court’s invoked to order and such could by leaving proceeding pending not be defeated against Lee Lillard and wife only. The possessing рrior the tribunal custody controversy, exclusive and it follows the decree of the Tarrant rendered on jurisdiction. Findings void for want of cannot predicated upon judgment. Accordingly relator is or- discharged. dered Opinion delivered June
ON MOTION FOR REHEARING delivered the Mr. Justice Court. Norvell *9 We have rehearing considered the motion for but adhere to holdings expressed copies оpinion. our Certified pleadings of various filed in the Dallas were Court submitted with the motion substantially but these do not disclose differ- ent factual presented basis from that the record us at before the time of writing submission. Further is deemed unnecessary. rehearing
The motion for is overruled.
Opinion July 23, delivered 1958. Mr. joined by Justice dissenting. Calvert Justice Walker The record now us before shows that Lillard had against dismissed her suit Lee County Lillard in against her suit Mr. and Mrs. Lee Lillard in Tarrant County February 26, on It therefore at time of the in the District Court County of Tarrant on May 24, 1957, entry and at the judgment time of the of therein 7, 1957, there was no suit then in Dallas Coun- ty parties involving between the same matter. possession physical of
Mr. and Mrs. Lee Lillard had County. in Tarrant suit filed tninor County County proper and the Tarrant was the method adjudicating proper all issues District was the forum for possession as between of and of minor Norris, Lillard and Mr. Mrs. Lee Lillard. Knollhoff v. 2d 79. County pending in The fact there was then husband, and her former between juris- County Lillard, in had which the District Court of parties, those diction determine between way against the Tarrant no militated questions County similar District Court to determine Imagene Lillard Mr. and Lee Lillard. Mrs. my opinion judgment thе District
It is County awarding custody Ima- Tarrant gene minor against any right possession cus- Lillard as claim tody judgment and that of such child Lillard was valid Lee violating removing judgment by the cus- in tody the child from possession Imagene Lillard, Lillard was in con- tempt He remanded to of the court. should be contempt. for his sheriff of Tarrant majority have ordered the release of Lee
Inasmuch punishment express opinion as I no to whether his County jail a fine could exceed confinement $100 days. period for a of three July 23,
Opinion delivered