Ex Parte Wrather, 7969.

• Decision Date: 29 April 1942
• Docket Number: No. 7969.,7969.
• Citation: 161 S.W.2d 774
• Parties: Ex parte WRATHER.
• Court: Texas Supreme Court

161 S.W.2d 774

Ex parte WRATHER.

No. 7969.

Supreme Court of Texas.

April 29, 1942.

Habeas corpus proceeding by John E. Wrather.

Relator ordered discharged.

J. W. Wheeler, of Austin, and Fred Erisman and Mike Anglin, both of Longview, for appellant.

Hurst, Leak & Burke, of Longview, opposing the writ.

SHARP, Justice.

This is a habeas corpus proceeding. This controversy grew out of an order made by the District Judge in the 124th District Court of Gregg County, entered on the 4th day of March, 1942, affecting the custody of a minor, John McDonald Wrather. On the 16th day of March, 1942, a contempt motion was filed in said court against relator, for refusing to obey the order of the court entered therein on March 4, 1942. Upon hearing, relator was adjudged in contempt of court for failure to deliver custody of such minor son to his mother, as directed by such court. Relator applied to the Court of Civil Appeals for a writ of mandamus, but the writ was denied by that court on March 25, 1942, on the ground that this Court had acquired jurisdiction of the subject matter involved by granting relator a writ of habeas corpus on March 23, 1942. The principal question involved here is whether a judgment of a district court, awarding custody of a child, may be superseded pending an appeal.

The material facts are these: The parents, Mrs. Irene Wrather, referred to as the mother, and John E. Wrather were divorced in 1937. The question of the custody of their minor son, John McDonald Wrather, was relitigated in September, 1939, and again in November, 1940. In the order of November, 1940, the child was awarded to the mother for the scholastic year of 1941-1942; but the father was to be allowed the temporary custody on alternate week ends. The order also provided that each parent should post a $5,000 bond, payable to the other maker, conditioned that he or she would not remove the son from the jurisdiction of the court.

On March 4, 1942, the former custody order was modified to provide that the father was to keep the child in school at Longview, Texas, during the scholastic year 1941-1942; but that the mother was to have temporary custody on alternate week ends, beginning on March 13, 1942. It also recited that the mother thereafter would keep the child during subsequent school years, and that the father should have custody during the summer months; but the opposite parent was to have the son on alternate week ends. The relator, the father, excepted to this order. He gave notice of appeal, and began efforts to supersede the judgment. On March 12, 1942, the District Judge wrote the district clerk a letter, advising him that he was enclosing an order permitting the father to appeal on $1,000 bond; but he cautioned the clerk to be careful about taking the appeal bond, evidently because he did not believe the judgment could be superseded. On March 12, 1942, the father tendered a $1,500 bond to the clerk, for the purpose of superseding the judgment. The bond was filed, and the clerk was requested to approve it. He refused to do so because of the statements of the trial judge. The next day, March 13, 1942, being the first day of the first week end the mother was entitled to custody under the order of March 4, 1942, the mother demanded the child. The father refused to turn him over to her. She immediately filed an affidavit for contempt, and a show-cause order was issued. Upon the contempt hearing the trial judge stated that he would not set a supersedeas bond because he did not consider that one was necessary. He subsequently signed the order refusing to set the bond. It was stipulated that one of the sureties on the bond tendered, T. B. Wrather, was financially able to pay the amount of the bond, in the event of default. There also appears in the transcript an affidavit of the clerk that h...