*1 723 injunction only of the cree summary temporary that above From the theretofore dissolved and before the hearing issued in the facts introduced denied, was prayer permanent injunction passed, order 19th order was March affirm- and regard judgment as so reformed passed without such arbitrarily ed. and condition and need necessities any or4No. bridges Precinct roads In both considering the contentions County. There part Montgomery parties, we have “defend- not considered the a Commis procedure perscribed for is no judgment” ants’ motion to correct determining Court to follow sioners’ thereto, exhibits nor have we attached part bridges in necessity roads and were not considered other matters which county. county or in whole before the of the the trial trial court on exer right Court has Commissioners’ case. discretion cise its sound allocation necessity determining Reformed and affirmed. It be said funds. cannot such the Commis action of
above record that the supported by sub
sioners’ was not Court apparent We
stantial evidence. think attempt did not face the order on its bridge apportion
arbitrarily the road proportion strictly on funds a basis Ruby vlr, Appellants, Jewel TROTTER et precincts. various collected in the taxes percentage here the If that had done No. 4 would have allotted Precinct Wellington ux., Appellees. Elbert POLLAN et percent great deal smaller No. 15367. percent order. Since allotted in the much No. was allotted to Precinct Appeals Court of Civil of Texas. taxes percentage of the greater its Dallas. precinct, its assessed and collected Feb. in considera allotment order made such an itself which the order factors of all the tion Rehearing Denied March having been considered. recites as 19, 1957, order March
We hold supported was Court of the Commissioners’ it, evidence that such before substantial jurisdiction of the was within the
an order exceed and did not Court
Commissioners’ arbitrary action jurisdiction, that
such Commis- shown on the passing order Court
sioners’ holding that such court’s trial correct and order was a valid
order before it. We by the record
supported provisions of all other hold further upon to limitations regard were erroneous order of such
the effect the district authority of
outside case.
in this will be district court judgment of the order, adjudge and de- so as
reformed
725
*2
Appellees
Parker, Dallas,
appellants.
November
1956 filed
Earl R.
petition in
Court for
*3
Dallas,
appellees.
Davis,
for
Snead,
Charles T.
part
Patricia
in
alleging
Ann
that
they
caring
supporting
had
for
been
and
years,
her for more
six
than
the minor
YOUNG, Justice.
having
peti-
known
other than
no home
life,
part
tioners’
greater
for the
its
of
is with-
November
opinion of
Our
it was
and that
"to the best interest
said
of
its
in
following substituted
the
drawn and
minor child
standpoint
from health
that
mo-
present
stead;
or amended
to which
your petitioners.”
she remain with
That
addressed.
rehearing may be
for
tions
only
parent,
“The
living
Ruby
Mrs.
Jewel
(cid:127)Trotter,
Court,
Rockdale, Texas,
now resides at
January
1957 in
Juvenile
wife,
that
Pollans,
she voluntarily
and
abandoned and deserted
husband
appellees, the
approxi-
the
child when said
was
custody of
final
awarded
Shad
n eleven-year
Snead, mately
years
three
age,
of
that
Patricia Ann
such aban-
girl,
old
pro-
adoption;
period
donment
of more
of
has been for a
the
through a
Ruby
two
and has left
the
challenged by
said child
being
in
later
ceeding
care, custody,
Snead),
nat-
control and
of
management
Trotter
(formerly
Jewel
sup-
your
suit,
petitioners,
corpus
mother,
and
not contributed
has
ural
to
support,
wise
maintenance
petition
set aside
plemented by a
to
period
control
for a
adoption.
charged
minor child
It was
said
decree
greater
years”;
securing
consent
two
service
that
void
was
n Trotter,
Ruby
on
citation
Trotter at Rock-
had not
petitioner,
Mrs.
Jewel
dale on
November
The case
obtained;
conditions
nor
Leen
,art.
consent,
investigator’s report
46a, V.A.C.S.,
been was
on
heard
basis
in lieu of
n satisfied.
(appellant
ap-
and
mother
hearing, appellees’ judg-
Upon
;
pearing)
confirmed;
in which connection
follow-
ment
was
instrument
signed and
-mother,
was
filed
Trotter,
appealed
Mrs.
has
n theorder
Judge Peurifoy:
“It
known
for—
prayed
denying her relief
undersigned,
Peurifoy,
Paul G.
who
repossession
prior
judgment,
-vacation of
Dallas
being Judge
Court of
her child.
.and
Texas,
minor,
County,
father of the
litigation
Background
Snead,
should
Patricia Ann
is dead and
briefly.
subject child was
-outlined
Snead,
Ann
mother
Patricia
whose name
Snead,
appellant
Trotter,
and Howard
'Mrs.
-daughter of
Ruby
is now
has volun-
Jewel
2, 1945. The
were
tarily
October
born
abandoned
deserted said minor
n
Snead,
May
petition
child,’
divorced in
and that the minor child’s residence
Ann
given
of Patricia
who was
County, Texas,
Dallas
hereby
I
consent
reserved
right of reasonable visitation
adoption prayed
to the
thereafter
-to
Snead
defendant mother.
22, 1956,
heretofore
filed on November
styled
'boarded the child in various homes
being numbered and
as shown above.”
intervals,
placing
finally
-short
Report of the Chief Probation Officer
1950, upon
appellees December
'home
(Sec.
46a)
recited
divorce of the
week,
per
agreement
boarding
$10
.a
when
in 1950
Sneads
of Patricia
since resided in care
where Patricia has
father;
placement
awarded
died Octo-
-of
Pollans. Howard Snea'd
by him with the
"on a
mother,
Pollans
31, 1956, whereupon
Ruby
of child
ber
basis” in December
(she
boarding
Trotter
remarried
Jewel
Rockdale,
October
demand
County),
Milam
came
of Snead
living in
natural mother
the made thereafter
Dallas and
custody.
Judgment
Pollans
Pollans,
refused.
which was
-child from
the court had
payments
recited in
of board for the child
report
year
considered this
after
so,
heard and
the first
a fact which
pre-
“that all
investigator;
Trotter1;
further
made known to Mrs.
consents, waivers,
appellees
notices
liminary
nevertheless continuing volun-
ju-
processes necessary
give
tary
care and
They
child.
cause
determine this
stress
risdiction
hear and
the fact that
citation
served on
herein;
given
on file
the mother
are
January proceed-
adopt
petitioners
proper persons
ings
adoption,
appellant
are
not there mak-
*4
child;
ing
appearance.
interest
said
that it is
the best
an
For
nonappearance
her
adoption
petition
trial,
such
for
at
of said child that
Mrs. Trotter
testified to
terminated
granted.”
be
decree also
adopt
advised “that nobody could
her
care,
rights
persons
(Patricia)
to the
my consent”;
of all other
without
and that
minor
“I
custody and control of this
didn’t
money”
have (obviously Ann hire
ordering change
lawyer).
of name to Patricia
a
question
The statute in
(art. 46a,
Pollan.
sec.
V.A.C.S.) provides:
“Except
provided
as otherwise
in
Sec-
appellants for
petition of
writ of
tion,
adoption
no
permitted
shall
except
February
corpus was filed
with the written
living
consent of the
set
to include
aside
amended
parents
child;
of
provided, however,
adoption. Mrs.
January judgment of
parent
living
parents
or
vol-
shall
if
upon death
alleged that
of
Trotter
untarily abandon
and desert a child
child, her
father,
legal custodian of the
adopted,
to be
period
(2)
two
for
superior
all
rights
become
thereto
years, and shall have
such
child
left
adjudication
such
others, seeking an
care, custody, control
management
effect;
claiming an abandon-
defendants
persons,
other
or
parent
such
parents
by plaintiff,
a failure
ment
Patricia
also
shall have not contributed substantially to
support
over
contributions
her
to make
such child during
pe-
al-
period
years,
than two
of more
riod
two (2)
commensurate
ready mentioned.
his
ability, then,
event,,
in either
financial
facts, Ruby
Trotter testi-
On the
necessary
shall not be
to obtain
Jewel
the writ-
custody in favor of
waiver of
fied to a
ten consent
of the living
parents,
divorce, perforce
father at time of the
default,
in such
and in
such cases
circumstances, marrying
of necessitous
consent,
permitted
shall be
on the written
1952,having now a
home
Trotter in
Judge
Court of the
Juvenile
present
join-
her
at
husband
Rockdale and
county of
residence;
such child’s
or if
repossession of her
move
Court,
there be no
then on the-
child;
with Patricia at
that she
visited
Judge
written consent of the
County
past,
each
remembering
intervals in
her
Court
county
resi-
such child’s
year
birthdays
at
Christmas
(Emphasis ours.)
dence.”
apparel, toys and
wearing
small
gifts of
Pollan,
money.
aged
Mrs.
amounts
First
be determined is the status of
cross-exami.nation,
fifty-three, on
admitted
January judgment
and its.
and visits to
gifts
Patricia
general
vulnerability
independent
attack
years;
over
by
her mother
several
appellant.
appel-
made
thereon
It
however, that Howard Snead had
stating,
position generally
lant’s
that aforesaid
conflicting,
point
This,
1. At this
to
nied, stating
arrears.
Mrs. Pollan de
saying
notice of
Mrs. Trotter
de
that the mother had mere
by Snead,
ly promised
money
board bill
fault
she had
to later send
when
due,
(present husband) got
Pollan the
but
asked Mrs.
amounts
“Bill”
out of the
money upon
Navy.
information from
sent no
effect that
father had
latter to
48 Tex.
(1) obtained
void as
adoption decree
1
Tex.Civ.App.,
Pettit
Engelking,
inapplicability
(2)
consent, and
her
without
46a,
2d
citation
to the service of
of art.
Relative
exceptions
emphasized
upon
18,864 B/J,
Mrs.
in cause No.
Trotter
right to
having had no
parte
ax.,
pro
et
“There is
Snead.
Pollan
1956 on
October
child until
parents
vision of law
which
natural
to effect
appeal are
points of
Further
parties
to an
void-
shall be named
at least
adoption judgment
Collins,
adoption.”
under
action for
Austin v.
held
been so
and should
able
relief,
Tex.Civ.App.,
668. Writ
proceedings
February
ten consent
constitutes
latter
at
testimony adduced
view of
46a,
under
and in lieu
notice
sec.
trial.
consent, jurisdiction
es
of the cause is
pled
bar
appellees
hand
theOn
by allegations
proof of the
tablished
action
appellant’s
alternative,
statutory exceptions,
in which
*5
failed
she
in which
proceedings
adoption
Harris,
required.
is not
Pearce v.
notice
hav-
not
therein
judgment
appear;
the
859;
Tex.Civ.App.,
Matthews
134 S.W.2d
becoming
appealed and
final..
ing been
Whittle, Tex.Civ.App.,
601.
v.
S.W.2d
149
exceptions
statutory
pled
They
also
upon appellant
Such service of citation
required,
not
whereby
consent
opinion
than of
our
amounted
no
more
impliedly found
trial court
which the
by
purposed adoption
ficial notice
on
adoption
validity of
exist, and assert
knew;
appellees,
already
a fact which she
ground.
pre
adoption not
judgment of
her,
later,
filing
cluding
days
sixteen
here,
has
Where,
the father
as
Appellant could have
the instant
suit.
original
child in
awarded
adoption pro
been
raised the
issues in the
same
cannot,
mother
proceedings,
divorce
ceedings by
judgment
motion to set aside
chargeable
period,
during
Pro
yet
Texas Rules
Civil
not
final.
State,
v.
Freeman
(abandonment).
cedure,
329-b,
desertion
Rule
subd. 5.
1069;
428,
S.W.
280
103 Tex.Cr.R.
Jones
18,
appellant
juncture,
was entitled
State,
At such
Tex.Cr.R.
159
v.
Tex.Cr.App.,
joined
hearing
State,
full
on the
then
to a
issues
324;
v.
Gomez
duly
by
con
pleading
has been held
her
which
trial court
rule
This
269.
S.W.2d
think,
accorded; erring,
in the
where the
we
conclu-
cases
trolling of
ex
statutory
es
sought
of art.
to be
sion
conditions
46a are
ceptions of
Purvin, Tex.Civ.App.,
had
regards
as
been satisfied.
46a
consent
Lee v.
tablished.
Lee,
“voluntary
405;
Tex.Civ.
have
aban-
Purvin v.
could
There
339;
parte Payne,
we
and desertion”
as
donment
App., 300 S.W.2d
seen;
supra;
already
In
authorities
Tex.Civ.App., 301 S.W.2d
disclosing
v. State
likewise
record
Freeman
bar,
rule
at
case
appellant
alleged
failure in contribu-
applicable
one
its face
two-year period
child until
over the
tions
degree).
lesser
And
(abandonment
institution
month
less
adop
statement,
in the latter
mistaken
suit,
bewe
appellees’
prima
strikingly
in fact situations
facie void
been held
appear to be
has
would
tion
presented,
points 1
one
appellant in
here
by
similar
contended
appellant
nonsupport
finding
statutory period is so overwhelm-
over
appellees invoke
rule
But
weight
preponderance
against
ingly
which the mother
by judgment
estoppel
per-
should not be
same
of evidence
appealed from or
party,
awas
Purvin,
supra;
v.
e.,
to stand. Lee
proceedings, i.
mitted
in direct
aside
be set
Wilson, Tex.Civ.App., 285
v.
S.W.2d
Review; citing
Hagedorn,
v.
Alexander
Bill
Jones
Tex.Civ.App.,
Jones,
Willson
304 best
v.
interest of the child demands that he
deprived
5.W.2d 573.
should be
custody,
of that
upon him who
avers
devolves the burden
Though
deprived
legally
over
proof,
presumptions are against
—the
af-
period, appellant’s
”
natural
love and
it.’
quotation
This inner
first
stated
abate,
as dem-
fection
her child did not
Weir v. Marley, 99
Mo.
S.W.
letters, vis-
frequent gifts,
onstrated
672, expressly approved
6 L.R.A.
home,
its, etc.;
having
now a suitable
Deaton,
State
rel.
ex
v.
93 Tex.
Wood
facilities;
church
and school
environments
54 S.W.
Jackson,
and Dunn v.
Tex.
union
girl
born
Com.App, adopted by Supreme Court, 231
joining
Trotter,
employed and
he well
S.W. 351.
presump
But above mentioned
custody.
trial
instant
suit
tion of law
appellant
in favor of
is in no
appealed
from found
conclusive,
wise
even when found to be a
person
proper
mother
a fit
to be
fit
person.
and suitable
Jackson,
Dunn
per-
allowing
rights of
visitation
supra;
Martelli, Tex.Civ.App,
Cecacci v.
in her
the other
son and
own home.
ref.;
Banks,
writ
Miller v.
hand, the Pollans have furnished Patricia
Tex.Civ.App,
remanded trial. custody, paramount interest of child Rehearing. question.” Appellant first time as Appellants’ motion for rehearing over- any justiciable lack of interest on serts the ruled. controversy in Pollans volving this minor child as mother, the natural under the rule
against Morgan, Prock v.
of decision followed in
Tex.Civ.App., 291 S.W.2d that: bring an outsider wishes to
"Where to take a child from the suit parent and have it awarded to of its REE, Appellant, Carl VON outsider, him some other he must bring provisions such suit under the al., Appellees. P. A. et CARMINATI Arts. 2330 and must be No. 15886. *7 prepared prove child is a child, dependent neglected or that Appeals Court of Civil Texas. parents having its cus- Fort Worth. tody persons are unfit March custody. Until this the law is shown presumes the nat- April Rehearing Denied ural is best child.” for the Pollan, According following to Mrs. whereby "boarding arrangement”
they physical possession obtained father, Snead, Howard making weekly payments $10 n after about one year; appellees then vol- n untarily assuming responsibility for
n child’scare and maintenance, treating her n as their own, bestowal love and appears recip-
.affection that to have been
rocated. Such the state of the evi-
dence, regarded appellees we have per- parentis in loco (foster parents)
sons justiciable interest,
(cid:127)existing rather “ * * * through “outsiders”. one who charity
'kindness or motive has re- family
ceived into his and treats thereof, par-
-as a member stands loco