*1 us As bеfore record we view relevant not the above evidence presence before and its the case issue only purpose jury could serve a witness appellant as to discredit shows The record
his own behalf. occupants appellant and his wifе that his truck, he was the driver negligence charges of defense to entirely depends almost brought against him record, testimony. Under
on his own opinion that the error are of the we Bain require a reversal. nature -to such Pinson, Tex.Com. v. Co. of Texas Peanut 536; Parker, Tex. Peеk App., 294 S.W. v.
Civ.App.,
Of course cannot
affect, any, this evidence had if exceptions of jurors, but think the we the record as viewed with
appellant, when probably whole, prejudice re show appellant, and that sulted admitting exceptions the evi
of his a sub the denial
dence was Odiorne, v. 112 Tex. right. Golden stantial 822; Bank 544, 249 Amеrican Nat. S.W. Sheppard, Tex.Civ.App., 175 Austin v.
S.W.2d 626. judgment of re- cause and this
versed remanded. and remanded.
Reversed THOMAS.
THOMAS
No. 15125. Appeals of Texas. Worth. Fort Mays, Dallas, Simon, Wynn, Carl Sand- 17, 1950. Jones, ers & and Kenneth Fort H. Jones Denied Worth, appellant.
Bonney, Look, Paxton & B. Wade and J. Jr., Dallas, HALL, Justice. Ruth Thomas sued Thomas, husband, her former
549 seeking Appellant Court, a Robert County Thomas his Dallas Juvenile appellant to of privilege County, to be sued in Tarrant corpus against habeas writ of Texas; appellee adopted minor their filed her possession of obtain plea, Thomas, pertinent parts years child, Stephen six of which are as Robert follows: 8th “Petitioner filed herein on the age. day September petition A.D. a was entered a decree of divorce The purposes part for all i's made a here- County on Novem- court of Tarrant district adopted of and in allegations The full. 17, 1945, appellee received cus- wherein ber Petitioner are true and correct and such along appellant as tody of child “* * * allegations aver, fact, show and and it ais court) being of (the follows: that Petitioner is a lawful custodian of said opinion that the best interest Stephen Thomas, Robert and that Petitioner child аt this time if said child will served Texas; County, is domiciled in Dallas that plaintiff given into the Stephen furthermore said Robert Thomas understanding that (appellee), with the was taken from her without have said (appellant) said is to defendant consent; in removing said child from her summer during child on weеkends and will; trespass be- arrangement long vacations so as such ing meaning Exception within the 9 to health and wel- not with the does interfere ” * * * Article 1995 of Vernon’s Annotated Civil said minor child. fare of Statutes of 1925.” Undisputed evidence in the case shows 1948, appellant November, principal The sought in was notified relief in her habeas corpus Jackson, renting application a room a Mr. who was is that the child should appellee her, in be from Ruth Thomas her home returned to being that he was il- Dallas, legally appellee County, Texas, Ruth Thomas was ill confined in Tarrant patient Baylor Hospital, person a in and she a suitable was for the ques- him to see after his child in of said child advised virtue of the ren- decree dered in When at the home the divorce nothing tion. arrived case. There is appellee, alleged application in among people, corpus other he saw for habeas appellee’sbrother, wife, pertaining trespass having E. T. Wheeless and to a been com- boy’s preparing County; who assisted him in mitted in Dallas might clothing bring neither in order that is thеre statement in her con- County troverting appel- him home in to his Tarrant affidavit the effect that trespass lant County, him. committed a take care of Dallas Texas, necessary which is in order to undisputed main- The evidence shows further tain venue under' subdivision 9 of Article adjudgеd person a of unsound 1995, R.C.S., Vernon’s art. 14, 1948, Ann.Civ.St. mind and on December her broth- 1995. er, Wheeless, appointed Edwin Thomas guardian person of her and estate in the testimony Septem- court heard the on Texas; county court of Dallas testimony ber when the was closed adjudged person she was to be of sound a as follows: mind on 1949. June (attorney appellee): “Mr. Look Septem- brought action on Plaintiff rests. 8, 1949,
ber and a writ habeas revised “The Court: All closed? corpus September was issued on Simon (attorney appellant): “Mr. corpus portion of such writ of habeas be- sir.” Yes “ * * * ing alleged it is follows: 21, 1949,the trial en- On November you, Thomas, your the said Robert hold in overruling appellant’s plea its tered custody Stephen Thomas, il- consisting privilege, appeal, hence this liberty.” legally restrain him his Said points. four writ further ordered sаid Robert Thomas produce child him three and have before Points two and relate Texas, court Dallas that the trial court erred over- the district contention day September, because the the 13th his ruling County trespass pellee application in Dallas filed hеr evidence does not reflect that a appel corpus against County. for writ habeas committed in Dallas Boyd Crabb, lant. Tex.Civ. See also supra, agree. As stated To this we *3 App., 205 S.W.2d wherein controverting petition neither the nor the ordinarily deter court held: “Venue is trespass committed alleges affidavit a right by principal mined the nature of the her assuming but that in Dallas the sought asserted the relief and the trespass, then allege such pleadings did Here, breach thereof. Id. as in the case finding support a proof to was insufficient cited, principal award sought the an relief is committed; still trespass had been that a custody appellant, of of and the child to the to evidence was sufficient assuming, if the recovery any not a of sort for the commis trespass was a support judgment that a Also, alleged trespass. the fail sion of we child was removed time the at the committed support to find evidence in the record to County to Tarrant from Dallas trespass the claim that a was committed. evidence, undisputed the then, the under possession At the time the took of adjudged to appellee was day on which by child legal he was the child’s custodian appellant became under mind of unsound reason of the made in the award In of his child. legal custodian law the the judgment. divorce Whether or not he Bradshaw, 145 Tex. Peacock v. of the case deprived rights legal should be of his as 555, Su 551, page our at 68, 194 S.W.2d custodian of the child is a matter which will Article approval quoted preme have to be is determined when the case 1925, por a Statutes of 4118, Revised tried on the merits.” “ ‘ * * * if : is as follows tion of O’Quinn v. As stated in thе case of the nat dead, is the survivor parent is O’Quinn, 397, Civ.App., Tex. 57 S.W.2d person the minor of the guardian ural 398: “Plaintiff alleged general in terms that ” children.’ trespass defendant had committed a her 690, find 527, we Am.Jur., p. sec. 17 In possession not, of the She how- child. did insanity of “In of the following: case the ever, allege actually had de- she been child, a to the parent entitled a prived possession by of said child de- sur- death, right of the the case of as fendant force or On the con- otherwise. custody of the child the parent to viving trary, alleged affirmatively shе that she according and and, to the better revived possession then in of him. The circum- rights rule, preferred the over just more attending constituting stances al- the course, subject of strangers, or claims trespass leged peti- were not recited in her the con- respects, to ever this, in in as other tion, allegation and such a was therefore welfare. the child’s trolling consideration * * * But, mere conclusion. if defend- a mother be- after held that So, it has been alleged attempt deprive ant’s to the given insane, parents, who comes possession the child had been stated with agents child as custody of her temporary particularity sufficient a to show technical a divorce upon granting its court the trespass, only plain- same was an to incident right to father, (no) have the the against tiff’s cause оf action and not the basis there- custody of the child as the continued of, and insufficient fix venue in therefore supple- (Pocket father.” claims of the the county.” Lloyd Smith, Bexar See also change in the makes ment of Am.Jur. 793, Tex.Civ.App., 'by ap- 203 S.W.2d cited “the” to section of said sentence of last pellee. parentheses.) our “no,” as indicated Appellee in her brief that “this states suit, a child but was a was not the above rule wholesome suit findWe corpus proceeding it, here, merely habeas to return applying in adopt same one and op Appellee, appellant by possession the child to the appears that reasonably it already having been legal Appellee awarded custodian of law became eration child virtue becoming of said decree upоn his cocustodian’s his child exception between and the Therefore, divorce no to of mind. unsound ap- Appellant.” available at the time 1995 was Article by the Whether or not Appellee further contends the trial court erred filed, affidavit allowing trial filing amended tо be of her amendments to it was dispute hearing the amendment shown without on October 21, rtppn the on November motion strike such amendment filed rendering amendments, not err in did and in the alterna- plea tive aside judgment overruling set his plea privilege, plea of said amendments ad- reason that the of res against ap- judicata establishing adjudicata res was without a sufficient basis Appellant’s pellant’s privilege. facts. The evidence adduced point dispute motion relates to this issue. shows without four that the *4 privilege of appellеe filed in of behalf before, As court all of stated the heard County withdrawn, Tarrant pur- suit was day Septem- testimony on 16th the the of agreement suant to an between counsel of ber; signed on the 21st judgment he the representing record respective parties, the day Novеmber, day same of the before the order of dismissal was ever en- filed to her amended con- her amendment copies tered. pertinent portions Certified of plea. troverting of County the proceedings Tarrant appellee’s pertinent portion The of evidence, tendered in and there can be no plea to filed controverting amendment her dispute plea appellee’s the about fact that days October was several privilege County of filed in the Tarrant was testimony closed, after the is substan- was prior withdrawn her counsel to time tially appellant filed suit as follows: That nothing suit was dismissed. there Since is against County her in Tarrant on or about proof in the record to indicate that with 10, custody December 1948 for of said respect County to the Tarrant suit or could child; privilege plea her that she filed of any trial, would be on different another appellant took nonsuit be- thereafter remanding there be would no reason for privilege upon. fore of her was acted development in the cause for further this In her her amendment tо trial amendment respect. The record does not show to her affidavit to ground what the trial court overruled the privilege pertinent allegation of is us, privilege plea of in the case now before substantially as follows: That appear it the but does from rеcord that his against filed on or suit about the 15th supported theory be cannot on the December, 1948, Tex- in Tarrant adjudicata. res as, for the and control the son Judgment of the trial court Thomas; Stephen subject that the appellant’s plea is reversed and subjeсt matter of said suit was the identical hereby judgment ordering rendered the present the proceeding. matter of cause to Tar- transferred a district court of filed The suit in Tarrant rant The clerk trial Texas. County obviously purpose was comply appli- for the court is instruсted to 89, provisions cable Rule Texas Rules of question re-litigating the who should Procedure, Civil such transfer. making have of the child. de- brief, quoted supra, appeal All this costs of costs in her the clares the prior incurred County the to the time brought suit her in Dallas was purposе suit filed in to re-litigating such the court which hot the for the cause question is transferred shall taxed brought strictly but was corpus proceeding, as habeas based the
fact she had theretofore been awarded Motion On for child, and on the claim wrongfully detaining was Appellee has the clerk sent to mail, been court, through child. We have not cited to States case United adjudicata rehearing. judgment in which doctrine res Our has motion for applied 17, day in a been situation like the one The be- March fifteen rendered filing rehearing, fore us. motion 'for Rule period for Procedure, ex- 458, Rules Texas envelope in which April pired first. post- sent was rehearing was motion for first, Texas, April Dallas, marked April clerk on our motion delivered
third. not filed the motion
Since mail and first, deposited in the or day be
envelope or more postmarked one T.R.C.P., 5, day filing, Rule fore last ordеr effective
as amended deny appellee option but to we have no no We have
permission file the motion. filing.
authority extend time County, 146 Tex. Reynolds v. Dallas Hamilton, 362; Tex. Winter v. S.W.2d
Civ.App., 214 S.W.2d 336. CASU MUT. EMPLOYERS
OLGIN ALTY CO.
No. 11989. Appeals of Texas. Antonio. San 15, 1950.
March
Rehearing 1950. Granted Overruled Boatwright, An-
Morriss, & San Morriss tonio, appellant. Groce, Antonio, Charles Eskridge San & Antonio, Hancock,
R. San MURRAY, Chief W. O. Justice. by was instituted Pauline V. suit This sole, against Emрloyers Olgin, feme Mu- Company, Casualty to recover seeking tual $2,000, was the amount sum judgment obtained of a Monico Torres a result of a collision car driven a truck between Torres, belonging the truck driven Inc., By-Products, National driv- being en Torres the time of the collision allegedly permission with the of National By-Products, Inc.