Gathright v. Riggs
| Decision Date | 16 March 1961 |
| Docket Number | No. 3878,3878 |
| Parties | W. E. GATHRIGHT, Appellant, v. Rosa Iona RIGGS et al., Appellees. |
| Court | Texas Court of Appeals |
Mays & Jacobs, Corsicana, for appellant.
Dawson & Dawson, Corsicana, for appellees.
Appeal from order sustaining plea of privilege in a child custody habeas corpus proceeding. The controlling question is whether dismissal of previous habeas corpus proceedings in another county, while appellant's plea of privilege therein was pending, fixed venue of the instant proceedings.
By a 1956 modification of a divorce decree, custody of the child was given to his mother, appellee herein, from September 1 to June 1 of each year. On September 3, 1960, appellee filed in the District Court of Limestone County an application for writ of habeas corpus and an affidavit for writ of attachment, alleging the child was being illegally restrained and confined by appellant, his parternal grandfather, and asserting that she was entitled to custody and possession under the divorce decree. The child's father was not a party. Upon service of these writs, appellant filed in the habeas corpus action a plea of privilege to be sued in Navarro County, where he resides. The child was thereupon delivered to appellee by order under the writ of attachment; and hearing in the habeas corpus proceedings was continued to permit filing plea controverting the plea of privilege. One week later, before the plea of privilege was controverted, the Limestone County habeas corpus proceedings were dismissed on appellee's motion.
The following month appellant instituted in Navarro County the present habeas corpus proceedings, in which appellee and her present husband were joined as respondents, alleging a change of circumstances and conditions since rendition of the divorce decree; and asserting that the interests of the child required custody be awarded to appellant, the grandfather. Appellee, the mother, filed her plea of privilege to be sued in Limestone County. Appellant controverted the plea, and alleged in abatement that dismissal of the Limestone County proceedings while his plea of privilege was pending fixed venue in Navarro County and made it res judicata of that issue. That contention is the issue presented on this appeal.
We think this contention may be resolved by application of stabilized rules established by the Supreme Court without resort to Court of Civil Appeals decisions containing expressions somewhat at variance thereto cited by the parties:
It is recognized that the Limestone County proceeding, even though essentially involving possession of the child, was also a civil suit involving custody. A plea of privilege was there available to appellant. Knollhoff v. Norris, 152 Tex. 231, 256 S.W.2d 79, 83.
It is likewise settled that ordinarily a dismissal at plaintiff's instance while defendant's plea of privilege is pending, even in the absence of a controverting plea, has the effect of fixing venue in a subsequent suit against the parties. Some decisions have said the venue of the subsequent suit has thereby become res judicata. That rule, however, is qualified by the requirements, among others, that such subsequent suit ...
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