144 S.W. 679 | Tex. App. | 1912
This is a proceeding instituted by the appellant, R. H. Finney, to recover, by means of the writ of habeas corpus, from the appellee, Mrs. Lila Walker, the custody and possession of his minor son, Harry Boyett Finney. The petition is as follows:
"State of Texas, County of Hunt. District Court, Sixty-Second District, Hunt County, Tex. To Hon. T. D. Montrose, Judge of said Court: The petition of R. H. Finney, who resides in Hunt county, Texas, would represent to your honor that Harry *680 Boyett Finney, his minor son, who is about eight (8) years of age, is illegally restrained of his liberty, and is confined and held in custody by Mrs. Lila Walker, who resides in the town of Athens, Henderson county, Texas, and that said restraint is without color or sanction of any legal process. That the mother of said minor is dead, and your petitioner is the duly appointed and qualified guardian of the person and estate of the said minor, and that he, petitioner, is entitled under the law to his custody and control. That such illegal restraint is a violation of the rights of your petitioner, is contrary to his consent, and is detrimental to the best interest and welfare of said minor. The premises considered, petitioner prays your honor to grant and cause to be issued a writ of habeas corpus, commanding the said Mrs. Lila Walker to bring, or to cause to be brought, the said Harry Boyett Finney before your honor at such time and place as you may designate, in order that the cause of his restraint and confinement may be inquired into, and upon hearing of the same, petitioner prays that the said Harry Boyett Finney be discharged from such illegal restraint, and that he be delivered into the custody and control of your petitioner. Witness my hand this the 14th day of November, A.D. 1911. R. H. Finney.
"Sworn to and subscribed by R. H. Finney before me this the 14th day of November, A.D. 1911. F. N. Sheely, Notary Public Hunt County, Texas.
"Thompson Thompson,
"Attorneys for Petitioner."
On the 15th day of November, 1911, by his fiat indorsed on appellant's petition, Judge T. D. Montrose directed the clerk of the district court of Hunt county, Tex., to issue the writ of habeas corpus, as prayed for by the appellant, returnable before him at the courthouse of said county, in Greenville, at 8:30 o'clock a. m. on the 25th day of November, 1911. The writ was issued, and on the date and at the place named therein the sheriff of Henderson county, Tex., appeared before the judge, having with him the boy, Harry Boyett Finney, in obedience to said writ. The appellee, Mrs. Walker, appeared by counsel, objected to the jurisdiction of the court, and asserted by proper allegations in a sworn plea her privilege to be sued in Henderson county, the county of her residence. This plea being heard and considered by Judge Montrose was sustained, and the venue of the cause ordered changed to the district court of Henderson county, Tex. To this order the appellant, Finney, excepted, and perfected an appeal to this court.
The entire proceedings took place in vacation, and the first question that arises is, Did a right of appeal exist from the order of Judge Montrose changing the venue of the cause to Henderson county? Prior to the passage of the act by the Thirty-First Legislature, amending chapter 3 of title 28 of the Revised Civil Statutes by adding thereto article 1107a, empowering judges of the district court to act in vacation, etc, we should have answered this question in the negative. Such an answer then would have been in accord with the holding of the Supreme Court of this state in the case of Pittman v. Byars,
This brings us to the question: Did the court err in sustaining respondent's plea of privilege to be sued in Henderson county, the county of her residence, and in transferring the case to that county for trial? The plea of privilege, in substance and form, complied with the statute, and it is not denied that Mrs. Walker, the appellee, during the time or dates involved by the issues of this plea, was a resident citizen of Henderson county. Indeed, this fully appears from the allegations of appellant's petition for the writ of habeas corpus issued herein. But it is contended (1) that the domicile of the father of a minor child is the domicile of such child, and as the appellant in this case resided in Hunt county, Tex., the venue of this suit lies in that county; (2) that a proceeding by habeas corpus for the custody of a child cannot, in the proper sense of the term, be regarded as a civil suit, and subject to the rules and regulations governing civil suits generally, but is the exercise of a special jurisdiction conferred by the Constitution and laws upon either the court or judges for the prompt relief of the citizen against any improper interference with his personal liberty. Neither of these contentions should, in our opinion, be sustained in this suit.
That a proceeding by habeas corpus to determine a parent's right to the custody of his minor child is a civil action, within the meaning of our Constitution and statutes, is well settled. Legate v. Legate,
The judgment of the court below is therefore affirmed.