Broome v. Smith
| Citation | 265 S.W.2d 897 |
| Decision Date | 11 March 1954 |
| Docket Number | No. 12645,12645 |
| Parties | BROOME v. SMITH. |
| Court | Court of Appeals of Texas. Court of Civil Appeals of Texas |
Grace & Palmos, and Bill Palmos, Hearne, for appellant.
J. B. Sallas, Crockett, for appellee.
This appeal by Mrs. Bertha Mae Brown Broome is from an order of the District Court of Houston County, Texas, overruling her plea of privilege to be sued in her then alleged residential county of Robertson, in a suit filed against her in the District Court of Houston County by her former husband, styled Billy C. Smith v. Bertha Mae Brown Broome, No. 8115, affecting the custody of a minor child of such parties, Billy C. Smith, Jr., a small boy born to them at a former time when they were husband and wife.
The child's father, the appellee in this Court, and as the plaintiff against the appellant here, had, prior to the filing of this appellant's stated plea of privilege, secured the custody of the child and its removal to Houston County, with its custody vested in him by that court's order.
Whereupon, in protest against such order of the trial court, the appellant had opposed her stated plea of privilege to be sued therein, in her alleged residence in Robertson County.
The record herein is extensive, being filled with proceedings through suits and applications for writs of habeas corpus, etc.; but, as presented to this Court, it gets down to a straight appeal from an order of the District Court of Houston County, overruling the plea of privilege so filed by appellant therein seeking the privilege of being permitted to answer such suit in the county of her new residence, at Hearne, in Robertson County.
This Court, after considering the briefs and such oral arguments as have been made therein, is constrained to affirm the trial court's order. The trial court filed full findings of fact and conclusions of law which appear to this Court to have been supported by the proceedings below, and which properly conform to the law of the case as there developed.
Since the jurisdiction of this Court is final in such an appeal to it-one overruling a plea of privilege by the trial court-and since, as recited, the record reflecting fully what was done below is before it, it is deemed unnecessary to restate all the procedural matters that were had by the parties-back and forth through the two counties of Robertson and Houston-where they respectively maintained their residences.
It is deemed sufficient to add here-in controlling substance-the findings of fact and conclusions of law, upon which, as recited, the trial court based its judgment:
First, those of fact, as above recited: The parties here had for some years prior to this suit been divorced under separate decrees each had obtained, and went their several ways, until this appellee was advised that appellant was living at Hearne, in Robertson County, Texas, and had their minor child in her possession. Whereupon, the appellee procured from the District Court of Houston County, a writ of habeas corpus, requiring her to bring such child before the Houston County District Court; thereupon, that court vested its custody in its father, in such Houston County.
The child's mother, however, contested that order before the Houston County District Court, through the same attorneys who now appear for her in this Court, they having signed themselves in that proceeding, 'As Amicus Curiae Only.'
Such counsel for the appellant filed in the habeas corpus proceeding their stated motion in that capacity, praying that the writ of habeas corpus, through which the court had so ordered the child turned over to the appellee here, be quashed, which motion the trial court overruled.
Second, those of law, as thus stated by the trial court:
'1. That, as a matter of law, the law firm of Grace & Palmos represented the defendant, Mrs. Bertha Mae Broome, at the time of filing the Motion to Quash the Writ of Habeas Corpus, which Motion was filed on the 23rd day of April, A.D., 1953, and prior to the filing of the Plea of Privilege.
'2. That due order of pleading was not followed, and the Plea of Privilege was waived by the appearance of Mr. John R. Grace and Mr. Bill Palmos, composing the firm of Grace & Palmos, attorneys at law, Hearne, Texas, at and for the hearing on the Motion to Quash the Writ of Habeas Corpus, although the attorneys contended they appeared only as 'Amicus Curiae.'
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Revies v. Loyd, Civ. A. No. 8194.
...example, Burger v. Burger, 293 S.W.2d 122 (Tex.Civ.App., 1956), reversed in 156 Tex. 584, 298 S.W. 2d 119 (1957), and Broome v. Smith, 265 S.W.2d 897 (Tex.Civ.App., 1954). Defendant here in fact was represented in the second Forrest County suit by attorney Hall. An amicus curiae brief was f......
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...are many authorities, but we deem it adequate to cite only a few. See Thomas v. Driver, Tex.Civ.App., 55 S.W.2d 187; Broome v. Smith, Tex.Civ.App., 265 S.W.2d 897; Walker County Lbr. Co. v. Edmonds, Tex.Civ.App., 298 S.W. 610; Jackson v. Birk, Tex.Civ. App., 84 S.W.2d 332; Olcott v. Reese, ......
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