Ex Parte Ellerd

• Decision Date: 27 November 1912
• Citation: 158 S.W. 1145
• Parties: Ex parte ELLERD.
• Court: Texas Court of Criminal Appeals

158 S.W. 1145

Ex parte ELLERD.

Court of Criminal Appeals of Texas.

November 27, 1912.

Rehearing Denied December 18, 1912.

Dissenting Opinion January 15, 1913.

Original application by Reuben M. Ellerd to the Court of Criminal Appeals for a writ of habeas corpus. Writ granted, and, on final hearing, applicant remanded to custody.

Carrigan & Householder, of Wichita Falls, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

PRENDERGAST, J.

This is a writ of habeas corpus from a judgment of the district court of Hale county, fining the applicant for contempt. The writ was granted in vacation by one of the judges of this court largely because the fine for contempt was for $250.

The record shows that prior to April 23, 1909, the applicant, Ellerd, sued his wife, Ruth, for divorce in the district court of Hale county, Tex., also setting up therein that there were two children by the marriage, a boy then five years of age and a girl then about three years old, and that his mother, Mrs. Lucinda Ellerd, was a proper person to care for said children, praying for a divorce and that the care and custody of said children be given to his mother; that on said date he was granted a divorce, and certain property was partitioned between them. As to the children, the judgment of the court in the divorce suit, in response to appellant's allegations and prayer, is as follows: "It further appearing to the court that the parties hereto have in open court agreed, and it is therefore ordered and decreed by the court, that the two minor children of plaintiff and defendant, to wit Truman Ellerd, a boy of about five years of age, and Nina Belle Ellerd, a girl of about three years of age, be and is placed and decreed in the custody of Mrs. Lucinda Ellerd of Hale county, Tex., who shall not later than the 1st of September, 1909, bring said children to the town of Plainview in said county and keep them in Hale county as their permanent place of residence, and that the defendant shall have the right to visit said children and administer to their needs at all reasonable and seasonable times; five days prior notice of such visits having been first given to Mrs. Lucinda Ellerd, without any hindrance whatever, and neither the plaintiff nor the defendant shall have the right to remove said children or either of them out of the jurisdiction of this court without the consent of the court or the agreement of the parties."

This judgment was in full force and effect when this contempt proceeding was begun; about August 9, 1912, said divorced wife of applicant, Ruth Ellerd, filed her motion in the said district court of Hale county, setting up the said divorce judgment and the disposition of the children as shown by that portion of the order copied above, and that on or about May 26, 1912, she not having seen her children for many months, wrote them a letter from her home in New Castle, Young county, Tex., addressing it in the care of said Mrs. Lucinda Ellerd, notifying her (said Mrs. Ellerd) that she would soon visit her children at Plainview in Hale county; that on June 1, 1912, she left her home and went to Plainview for the purpose of visiting her children, arriving there on June 2, 1912, and went to where Mrs. Lucinda Ellerd had been residing with her children but found they were not there but that her former husband, the applicant herein, had had his father and mother, after receiving said notice of her intended visit, take her children from Plainview to the town of Texico, N. M., and had placed them then on the train and sent them to Cloud Croft, N. M., both of said places being beyond the jurisdiction of the court and in a foreign state; that her said former husband, knowing her visit at Plainview and the purpose of it, had failed and refused to cause her children to be returned to Plainview as he could have done; that his father and mother were old and infirm, subject to his control and entirely subservient to his wishes with respect to the custody, control, and management of her children, and their control and custody being in substance and effect his control and custody, and that in violation of said divorce decree in the particulars above quoted had procured and caused them to remain away from Plainview beyond the jurisdiction of the court for more than 67 days at that time, while she waited in vain for the opportunity to visit them in Plainview as she was entitled to do under the terms of said decree, and that by his action he was guilty of violating the terms of said decree and in contempt of the authority of said court. There was much else in this motion of prior violations by her former husband of said decree and that he had many times been in contempt of the court in violation thereof, but it is unnecessary to state any of these matters as they were not the basis of the court's order in said contempt proceedings.

The record further shows due service upon the applicant and that he appeared with his attorney and duly answered her motion against him. That the court fully heard all of this matter between them, heard all the evidence, and thereupon and on June 26, 1912, made and entered in the minutes of said district court an order to the following effect: "It is ordered, adjudged, and decreed that the defendants, Reuben M. Ellerd, Mrs. Lucinda Ellerd, and her husband, T. J. Ellerd, and each of them, be and they are hereby required to produce before the district court of Hale county, Tex., on the first day of the next ensuing term thereof, to wit, the 5th day of August, 1912, at 10 o'clock a. m., the two said minor children, Truman Ellerd and Nina Belle Ellerd, mentioned in plaintiff's petition, and them to have in said court from day to day and term to term until otherwise ordered by the court, and to observe and to perform such further order of the court as it may make from time to time with respect to said children and the custody thereof; and it is further ordered that the clerk of this court do issue notice of this order to said defendants." That the clerk thereupon issued the proper writ with a copy of this last order therein, which was duly served upon the applicant. That in obedience to said order and notice the applicant did appear and answered the said motion, contesting the same in many particulars. Thereupon the court again heard the parties, all the evidence introduced thereon, and argument of counsel, and on August 10, 1912, entered a decree stating that the court was of the opinion that said Reuben M. Ellerd, applicant, was guilty of contempt of the court in disobedience of said order of said court rendered and entered on April 23, 1909, and thereupon adjudged him guilty of contempt of the court as charged by the plaintiff in her said motion and fined him $250, and "it is therefore ordered, adjudged, and decreed by the court that the state of Texas do have and recover of the defendant, Reuben M. Ellerd, the said fine of $250 and all costs of this prosecution, and the said defendant, being present in court, is placed in the custody of the sheriff, who will forthwith commit him to jail until such fine and costs are paid, and said defendant, Reuben M. Ellerd, is now in the custody of said sheriff, and execution may issue against the property of the defendant for the amount of such fine and costs." Thereupon the proper writ of commitment was issued to the sheriff of said county in accordance with said decree. The sheriff took charge of him in obedience thereto and was holding him in custody when he, on August 14, 1912, sued out the writ of habeas corpus herein.

The record herein does not show this court what testimony was introduced in the district court on the hearing and at the time the court made and entered the order fining the applicant for contempt. No appeal was taken from the said order fining him for contempt, if that could be done. By his brief and the oral argument of his attorneys, he attacks the said judgment of contempt on four grounds: (1) That the district court of Hale county had no jurisdiction to fine him in any sum for contempt for doing the things for which he was fined; (2) that the said judgment of contempt was void because the motion nowhere states that his children were taken out of Plainview without the consent "of the parties," claiming that the original decree herein first above recited was indefinite and uncertain and does not inform him or any one whose consent must be obtained in order to remove said children from Plainview; (3) that the said first order above recited was no such order or decree as would hold him in contempt for sending his mother and the children out of the state and the jurisdiction of the court for 67 days; that this would be in effect an injunction, when, as a matter of fact, it is a mere declaration of the rights of his father and mother in reference to said children and gave them the right to exercise such control over them as mentioned therein, and that Mrs. Ruth Ellerd, in effect, should have gone into a court of proper jurisdiction and sued out a writ of habeas corpus, or other process; and (4) that the district court had no authority to fine him exceeding $100, and that the judgment fining him $250 was void.

It will not be necessary to discuss the said three grounds, first set up, separately, but instead we will discuss them together. It is too well settled in this state to require any discussion to show that a district court of this state had the power and authority to make the order as to the custody and care of the children and where they should be kept and that they should not be taken out of the jurisdiction of that court. The statute of this state (R. S. art. 4641 [2987]), expressly gave the district court power to give the custody and education of the children to either the father or the mother as to the court shall seem right and proper. The Constitution of our state also (section 8 art. 5), as has been expressly held by our Supreme Court,...