Lead Opinion
This is an appeal from an order of the 112th District Court of Pecos County, originating in a habeas corpus proceeding instituted to test the alleged illegal restraint of a four-year-old female child, the daughter of Norris.
The child, Vera Lynn Norris, is the issue of Norris and a former wife. Norris and his former wife were divorced on the 12th day of June, 1950, by a decree of the 112th District Court of Upton County, and the care and custody of the child awarded to the mother with the right of reasonable visitation.
The mother of the child died at Lubbock, Texas, December 7, 1951. Mrs. Knollhoff, a sister of the deceased mother, and her husband, removed the child following the death of the mother to their residence in Lamb County, Texas. Norris, learning of the death on the 10th of December, 1951, by telephone made request of the Knollhoffs for the possession of the child, which was declined. The request was repeated on the 15th, and again declined. On that date Norris presented an application to the Judge of the 112th District Court of Pecos County fór a writ of habeas corpus. In the application the facts above stated were set up, to which was added that he was and had been for something like one and one-half years a resident of Pecos County; that on the death of the mother the care and custody of the child immediately, under the law, vested in him as the sole surviving natural parent. The Judge issued the writ over his official signature directed
*435 “To the Sheriff or any Peace Officer of the State of Texas”,
reciting therein that it had been made to appear to him “by satisfactory evidence” the child, a resident of Pecos County, was held in illegal custody by the Knollhoffs at Sudan in Lamb County, Texas, and directed that she be forthwith brought before him in Pecos County. The child was taken in custody by the Sheriff of Lamb County and delivered by him to the Sheriff of Pecos County, who delivered her into the possession of the Judge. He delivered her to the father. The Knollhoffs filed in due form a plea of privilege asserting their privilege to be sued in Lamb County. Pending the final disposition of the plea of privilege the child was returned by an order of the Court to the Knollhoffs. The plea was duly controverted, repeating the allegation of facts recited in the application for the writ, and saying custody had already been fixed as a matter of law and was not an issue; that the residence of the child was fixed in Pecos County already; that the child had been wrongfully and illegally deprived of its residence in Pecos County by the removal to Lamb County; that the order of the Court returning the child to the Knollhoffs was void and her removal from Pecos County by virtue of the purported order was wrongful and because of each of which facts a trespass had been committed in • Pecos County and venue, 'therefore, fixed under the 9th exception to the general venue statute, Vernon’s Ann.Civ.St. art. 1995. The matter was heard and the Court overruled the plea of privilege, from which this appeal is prosecuted.
Appellants’ three points are the Court erred in overruling their plea of privilege, this being a child custody case and they being residents of Lamb County; there being no trespass or other grounds of venue in Pecos County alleged, and there being no trespass shown to have been committed in Pecos County.
It must be readily admitted when a writ of habeas corpus is resorted to as a form of procedure to litigate questions as to the custody and care of a child and to ascertain what would be to the best interest of a child it is a civil action and subject to the venue statute, but such is not this case. The care and custody was already determined at the time this proceeding was initiated ' and vested immediately on the death of the mother in the father, and her residence and domicile fixed as that of the father. Peacock v. Bradshaw,
What is said in Lloyd v. Smith, Tex.Civ.App.,
It would serve no purpose to review the cases cited by Appellants and distinguish them. It may be said in each of them, as we understand them, the issue of custody was made by some pleading in the cases, which is not true here.
It is our conclusion the judgment of the trial court is correct and it is affirmed.
Concurrence Opinion
(concurring).
On behalf of Vera Lynn Norris, a minor, and his own behalf, appellee filed an application for a writ of habeas corpus. The prayer of the application was as follows:
“Your petitioner prays that your honor grant and issue the writ of habe-as corpus to have the said Vera Lynn Norris forthwith brought before your honor at such place as your honor may designate.”
The order, in accordance with the application was for writ commanding the ■sheriff to seize the person of the minor and bring her before the court. The writ of habeas cprpus as ordered and issued was tantamount to a warrant for the arrest of the minor, Vera Lynn Norris. This writ was not addressed to appellants. It was not provided that they should make return thereon. Their voluntary appearance to answer the application was not sought by the application. They were not ordered by the court to make answer to the writ or the application. Their appearance in the matter was purely voluntary in that they voluntarily filed a plea of privilege in a matter in which a judgment could not then be taken against them/if at all, in which notice to them had neither issued nor been sought. The transcript fails to show either the service or issuance of citation. The certified copy of the bill of costs fails to show a charge for issuance or service of citation.
The transcript shows the application for the writ of habeas corpus was filed on December 15, 1951, at 2:55 P. M., that the Judge issued a writ commanding the sheriff to seize the said minor and bring her before him at Fort Stockton, Texas. It is further shown that on the 16th day of December, 1951, in accordance with the writ the sheriff seized the person of the minor and she was presented to the judge issuing the writ on December 16, 1951. The plea of privilege shows to have been filed on December 17, 1951. While the plea of privilege recites that the defendant had been heretofore served with citation, the record does not substantiate this. The transcript fails to show that prior to the filing of the plea of privilege any sort of process had been served upon the appellants.
Art. 114, Code of Criminal Procedure, provides to whom the writ of habeas corpus shall be directed. It is addressed to the person having another under restraint. Art. 129, Code of Criminal Procedure, provides the judge may issue warrant of arrest whenever it appears by satisfactory evidence that one is held in illegal confinement or custody and there is a good reason to believe'that he will be carried out of the State. This allegation does not appear in the application we have under consideration. The process really prayed for and issued was not in reality a writ of habeas corpus, it was an application for the arrest of the minor. It did not purport to require the appellants herein to make return thereto, or require them to make answer. It seems rather that if they desired they might intervene in the proceeding and seek the custody of the child. Their appearance in the cause to urge plea of privilege before process had been issued and before they were compelled by compulsory process to answer at any time constituted an appearance in the case. While I agree with Justice SUTTON’S reasoning in his opinion, I think this voluntary appearance on the part of appellants presents ample justification for the overruling of the plea. The writ issued called a writ of habeas corpus did not provide that it be. served on the appellants. The record fails to show any form of service on the appellants.
In my opinion, under the application the district court or judge had no authority to
Dissenting Opinion
(dissenting).
It is with some hesitancy and reluctance that I dissent in this case, because the inherent justice of appellee’s position and the result reached by the majority is manifest. However, because of the importance of the legal-questions involved, and because I am not in accord with the views expressed by the majority, "fools rush in where angels fear to tread" and these views are recorded for what they are worth.
Appellants, I think with some reason, do not concede that the custody of the child is not involved in this case. An examination of the application for the writ of habeas corpus in Finney v. Walker, Tex.Civ.App.,
“No person who is an inhabitant of this State shall be sued out of the county in which he has his domicile except in the following cases * *
By claiming the benefit of exceptions 9 and 30, appellee impliedly admits that appellants have been sued within the meaning of the statute, otherwise there would be no necessity for attempting to maintain venue in Pecos County because of the exceptions.
It has been said that
“Strictly speaking, it [a writ of habe-as corpus] is not an action or suit, but is a summary remedy open to the person detained, although in some cases, or for some purposes, it is held to be an action or suit." 39 C.J.S., Habeas Corpus, § 1, p. 425.
The same statement is made in 29 C.J., p. 7, and in footnote 11 in support thereof is cited In re Barry,
That a writ of habeas corpus proceeding is a suit was held in Goetz v. Black,
Certainly the application for and the issuance and return of a writ of habeas corpus invokes the judicial function of the court, it invokes it to obtain relief from the parties by whom the illegal restraint is alleged If the person having the possession of a minor who is deprived of such possession by such process is not sued, it is difficult to designate a name for the judicial process employed. In any event, the 'writ of habeas corpus is certainly a proper proceeding to secure such relief where the possession of a minor is sought. If, as said by Judge Betts in Barry v. Marcein, 5 How. (U.S.) 103, quoted in McFarland v. Johnson, supra
“A procedure by 'habeas corpus can in no legal sense be regarded as a suit or controversy between private parties”
and as said in State v. Cheeseman, 2 Southard 445,
“It is for the relief of the prisoner and the prisoner only. It is to inquire why the liberty of the citizen is restrained,”
it may be noted that appellee in this case did not purport to apply for the writ solely in behalf of the minor child to obtain her liberty. Appellee applied for the writ in his own behalf and for his own benefit and 'he named appellants as the persons
Clearly the facts of this case -do not bring it within any exceptions to the statute. The exception contained in Section 9 is applicable only where the crime or trespass is committed in the county where venue is sought to be maintained. Here, if any crime or trespass was committed by appellants it was committed in Lubbock County, where they took possession of the child, or in Lamb County, where they refused to deliver her to appellee. The basis of the decision in Lloyd v. Smith, Tex.Civ.App.,
“ * * * it is obvious that the basis of these proceedings was the willful wrong and, to say the least, flagrant trespass committed by respondents on the right and privilege of relator to the care and custody of his children. So far as disclosed by the record, respondents, without the knowledge or consent of relator, or pretense of legal right, took possession of his minor children, removed them from their domicile and the domicile of their father, as well, into another county, and were illegally restraining them at the time the writ of habeas corpus was sued out.”
The court unquestionably not only had the power but it was his duty to make some provision for the temporary care of the child pending his ruling on appellants’ plea of privilege and his disposition of the writ of habeas corpus, should he overrule the plea. This he did by his order of December 17, 1951. Appellants did not commit any crime or trespass when they took possession of the child under this order.
I fail to see any application of Section-30 of the venue statute to the facts of this case. This section provides:
“30. Special venue. — Whenever in any law authorizing or regulating any particular character of action, the venue is expressly prescribed, the suit shall be commenced in the county to which jurisdiction may be so expressly given.”
The special venue statute on which appel-lee relies is Section 2 of Art. 4111, V.A. G.S.:
“A proceeding for the appointment of a guardian shall be begun: * * *
“2. For the person and estate (or of either) of a minor, in the county where the surviving parent resides, if only one is living, or in the county where the last surviving parent of such minor resided at the time of the death of such parent, if both parents are dead, or in the county where such minor is found, or in the county where the principal estate of such minor may be.”
This is not a proceeding for the appointment of a guardian for the minor. While this statute was cited in Lloyd v. Smith, supra [Tex.Civ.App.,
“If the respondents desire to challenge the right or fitness of relator to the care and custody of his children, they may do so in a legal manner by proceeding in a court of proper jurisdiction in Dallas County, the domicile of relator, as provided in Sec. 2 of Art. 4111, R.C.S., Vernon’s Ann.Civ. St. art. 4111, subd. 2.”
the basis for the decision that venue was. in Dallas County was as indicated because a trespass was committed there.
By his counterpoint 3, appellee contends that if any question of the custody of the child was involved in this suit the exclusive (emphasis ours) venue thereof was in*
I realize that the views herein expressed would permit a kidnapper who is an inhabitant of this State to reap the benefit ■of the venue statute. If this results in an absurdity, the remedy is with the Legislature and not by judicial legislation of the courts.
I respectfully dissent.