Cleaver v. Johnson

• Decision Date: 01 April 1948
• Docket Number: No. 6363.,6363.
• Citation: 212 S.W.2d 197
• Parties: CLEAVER v. JOHNSON.
• Court: Texas Court of Appeals

212 S.W.2d 197

CLEAVER v. JOHNSON.

No. 6363.

Court of Civil Appeals of Texas. Texarkana.

April 1, 1948.

Appeal from District Court, Cherokee County; H. T. Brown, Judge.

Habeas corpus proceeding by Green Johnson against Weldon Gibbs Cleaver to recover possession of Charles Edward Johnson, a minor. From judgment overruling defendant's plea of privilege to be sued in Dallas County, the county of his residence, the defendant appeals.

Affirmed.

Irwin & Irwin, T. K. Irwin, Jr., all of Dallas, for appellant.

Guinn & Guinn, of Rusk, for appellee.

WILLIAMS, Justice.

This is a venue case. Appellee, Green Johnson, instituted habeas corpus proceedings in Cherokee County, his place of residence, against appellant, W. G. Cleaver, a resident of Dallas County, to recover possession of Charles Edward Johnson, a minor. Charles, the son of Louisa Johnson, the unmarried daughter of Green Johnson and his wife, Priscilla, was born September 16, 1938, in the grandparents' home in Cherokee County, Texas, where the mother continued to live until her death on December 3, 1946, and where the child continued to live and be cared for by the grandparents as a member of their family.

This appeal is before us without a statement of facts. The court has filed comprehensive findings of fact and conclusions of law upon which the court held that suit was maintainable in Cherokee County, under Sections 5, 7, and 9 of Article 1995, R.C.S. of Texas, Vernon's Ann.Civ.St. art. 1995, subds. 5, 7, 9, and overruled appellant's plea of privilege to be sued in Dallas County, the county of his residence.

The court found that appellant "claims to be the putative father of this child," but "that he was never married to the child's mother at any time"; that on or about June 19, 1947, he came from his home in Dallas County, to the home of appellees in Cherokee County, where Charles, the child, was living and residing with appellee and "fraudulently represented to the appellee that if appellee would permit the child to go to Dallas, Texas, with appellant for a visit there that appellant would return said child to appellee in Cherokee County, within thirty days from June 19, 1947; that such representations were untrue and were known to be untrue by appellant when made, but that appellee and his wife, both and each did not know they were untrue, but relied upon and acted upon such representations and surrendered said child to appellant's possession for the thirty-day visit upon promise of return within said time, to the loss of the possession of said child and subsequent damage therefrom; and that these fraudulent representations and taking possession of the child by appellant were committed in Cherokee County, Texas, where this suit was instituted and is now pending." The court further found as a fact "that the wrongful obtaining of the possession of and seizure of said child and his possession by appellant from appellee and the taking away of said child was intentional wrong and injury to appellee by appellant and transpired in Cherokee County, Texas." The court concluded that the District Court of Cherokee County had venue of this cause under subdivision 7, as a fraud committed in Cherokee County by appellant; and under subdivision 9 of Art. 1995, R.C.S. of Texas 1925, as amended, as a crime, offense or trespass committed by appellant in Cherokee County, in the taking of said child from appellee.

Under the points presented, it is appellant's contention that as the putative father of the child he had a paramount legal right to the possession of the child, and that as appellee was merely in...