Gunn v. Cavanaugh, No. A-10596

CourtSupreme Court of Texas
Writing for the CourtNORVELL; STEAKLEY
Citation391 S.W.2d 723
PartiesRichard GUNN, Petitioner, v. Calvin J. CAVANAUGH et al., Respondents.
Decision Date09 June 1965
Docket NumberNo. A-10596

Page 723

391 S.W.2d 723
Richard GUNN, Petitioner,
v.
Calvin J. CAVANAUGH et al., Respondents.
No. A-10596.
Supreme Court of Texas.
June 9, 1965.
Rehearing Denied July 7, 1965.

Paul Petty, Ballinger, for petitioner.

Yates & Yates, Abilene, John W. Norman, Winters, for respondents.

NORVELL, Justice.

On May 25, 1964, the three children of Richard Gunn, the petitioner, were adopted by respondents, Mr. and Mrs. Calvin J. Cavanaugh. Barbara Gunn, the mother of the children, consented to this adoption. The petition for adoption filed by respondents alleged that Richard Gunn had deserted his children. Gunn was not cited but the judge of the county court of the county where the children resided (Runnels County) consented to the adoption. Article 46a, § 6. 1 It is well settled in this state that when a court order purports to declare that the parental rights to a child have terminated and the parent is not cited, such parent is entitled thereafter to a plenary hearing to determine whether or not such parental rights have in fact been lost through neglect, mistreatment, abandonment or other antisocial conduct. Richard Gunn was not a named party to the adoption proceedings in the District Court and did not participate therein. However, within the time prescribed by Article 2255, he filed his petition for writ of error to have the case reviewed by the Court of Civil Appeals. Writ of error affords a review of the same scope as an appeal. Ward v. Scarborough, 236 S.W. 441 (Tex.Comm.App.1922); Burnett, 'Writ of Error Jurisdiction of the Court of Civil Appeals', Appellate Procedure in Texas, § 5.1. It is available to those who were parties to the trial court suit but did not participate in the actual trial of the case. The Court of Civil Appeals held that Gunn had 'an interest in this proceeding', that he had a remedy, but that it was not be way of writ of error. 385 S.W.2d 451.

We agree with the Court of Civil Appeals. Gunn's proper remedy is by way of an equitable proceeding in the nature of a trial court bill of review. There is no constitutional question of due process now before us. If, upon the hearing of the bill, constitutional issues should arise they will be there decided. Due process is determined by considerations more fundamental than mere forms of action or methods of securing a modification or abrogation of a judgment. Article 2255 places a six months time limit upon the writ of error. Such remedy would be clearly unavailable to the father who knew nothing of a decree terminating his parental rights until after such six-month period had expired. He would, however, have his right to a bill. Surely there is no great constitutional consideration which requires that the parent, who acts within the six-month's period, should have two remedies, while the parent who, for some reason, does not act within such period, is restricted to one remedy only.

The general rule is that the remedy by appeal in the usual form, or by writ of error, is available only to parties of record, Articles 2249, 2249a, 2250, 2251, 2255, Rules 352 to 363. 2 Rule 352 speaks of 'the party taking an appeal or suing out a writ of error.' Rule 359 uses the phrase, 'The party desiring to sue out a writ of error.' In Wood v. Yarbrough, 41 Tex. 540 (1874) the Court dismissed a writ of error as being without precedent or 'foundation either on

Page 725

principle or authority for its support' when it appeared that Wood, at whose instance the writ was prosecuted, was not a party to or the representative of either of the parties to the suit. The Court said:

'It was decided by this court, as long ago as the case of Smith v. Gerlach, 2 Tex., 424, and has never been since questioned, 'that this writ can only issue at the instance of a party to the suit, or of one whose privity of estate, title or interest appears from the record of the cause in the court below, or who may be the legal representative of such party.' The rule thus announced is, indeed, an elementary principle which has come down to us from the earliest days of the common law. (Townsend v. Davis, 1 Kelly, 495 (Ga.); (Overseers of Poor of Town of) Clayton v. Beedle, 1 Barb., 11 (N.Y.); Watson v. Willard, 9 Penn.St., 89; Green v. Watkins, 6 Wheat., 260 (5 L.Ed. 256); Tidd's Prac., 1134, et seq.; 3 Bac.Abr., 330.)

'If the facts alleged in the petition for the writ of error, upon which Wood relies to show his right to prosecute the writ, and to be relieved by the reversal of the judgment, entitle him to relief, most certainly he must seek his relief in a court of original jurisdiction. None of these facts are shown by the record, and none of them belong in any manner to it. They may be denied by the opposite parties. If so, they unquestionably would be entitled to a trial upon them before a jury.' (Italics supplied)

In Allied Drug Products Company v. Seale, 49 S.W.2d 704 (Tex.Comm.App.1932) it was pointed out that in Ferris v. Streeper, 59 Tex. 312 (1883) this Court held that, 'As a general rule derivable from the various provisions of the statute regulating appeals, only parties to the record may exercise that right.' This rule seems to have been consistently followed by the Texas courts. McLean v. Morrow, 156 S.W.2d 1002 (Tex.Civ.App.1941, ref. w. o. m.), 3 Tex.Jur.2d 471, § 199. Compare, Southern Surety Company v. Arter, 44 S.W.2d 913 (Tex.Comm.App.1932). Probate appeals are distinguishable from the usual species of civil cases as pointed out in Allied Drug Products Company v. Seale, supra. See also, Specia v. Specia, 292 S.W.2d 818 (Tex.Civ.App.1956, wr. ref. n. r. e.) A person who is a party under the doctrine of virtual representation (Rule No. 42) may also appeal, Robertson v. Blackwell Zinc Company, 390 S.W.2d 472 (Tex.Sup.1965), but that is not the case here. No one purported to represent the interests of the petitioner, Richard Gunn in the District Court of Runnels County where the adoption proceedings took place. While he may have been interested in the outcome of the case, he was neither a named party, a party by virtual representation nor a party by other device or theory known...

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122 practice notes
  • T. L. v. Cook Children's Med. Ctr., No. 02-20-00002-CV
    • United States
    • Court of Appeals of Texas
    • July 24, 2020
    ...that the burden of proof to show forfeiture of parental rights rests upon [whomever challenges those rights]"—quoting Gunn v. Cavanaugh, 391 S.W.2d 723, 727 (Tex. 1965)—while recognizing that those rights are not absolute because "protection of the child is paramount"); see also A.B., 412 S......
  • J.W.T., In Interest of, No. D-1742
    • United States
    • Supreme Court of Texas
    • February 2, 1994
    ...Accord Holick v. Smith, 685 S.W.2d 18, 20-21 (Tex.1985); In re G.M., 596 S.W.2d 846 (Tex.1980). Similarly, in Gunn v. Cavanaugh, 391 S.W.2d 723 (Tex.1965), we declared the rights of the natural parent are of high importance and due process properly requires that the burden of proof to show ......
  • T.L. v. Cook Children's Med. Ctr., No. 02-20-00002-CV
    • United States
    • Court of Appeals of Texas
    • July 24, 2020
    ...that the burden of proof to show forfeiture of parental rights rests upon [whomever challenges those rights]"—quoting Gunn v. Cavanaugh , 391 S.W.2d 723, 727 (Tex. 1965) —while recognizing that those rights are not absolute because "protection of the child is paramount"); see also In re A.B......
  • State v. Naylor (In re State), No. 11–0114
    • United States
    • Supreme Court of Texas
    • June 19, 2015
    ...Bd ., 852 S.W.2d 440, 444 (Tex.1993), and appellate standing is typically afforded “only to parties of record,” Gunn v. Cavanaugh, 391 S.W.2d 723, 724–725 (Tex.1965). Consequently, an appeal filed by an improper party must be dismissed. Id . We always have jurisdiction to resolve questions ......
  • Request a trial to view additional results
122 cases
  • T. L. v. Cook Children's Med. Ctr., No. 02-20-00002-CV
    • United States
    • Court of Appeals of Texas
    • July 24, 2020
    ...that the burden of proof to show forfeiture of parental rights rests upon [whomever challenges those rights]"—quoting Gunn v. Cavanaugh, 391 S.W.2d 723, 727 (Tex. 1965)—while recognizing that those rights are not absolute because "protection of the child is paramount"); see also A.B., 412 S......
  • J.W.T., In Interest of, No. D-1742
    • United States
    • Supreme Court of Texas
    • February 2, 1994
    ...Accord Holick v. Smith, 685 S.W.2d 18, 20-21 (Tex.1985); In re G.M., 596 S.W.2d 846 (Tex.1980). Similarly, in Gunn v. Cavanaugh, 391 S.W.2d 723 (Tex.1965), we declared the rights of the natural parent are of high importance and due process properly requires that the burden of proof to show ......
  • T.L. v. Cook Children's Med. Ctr., No. 02-20-00002-CV
    • United States
    • Court of Appeals of Texas
    • July 24, 2020
    ...that the burden of proof to show forfeiture of parental rights rests upon [whomever challenges those rights]"—quoting Gunn v. Cavanaugh , 391 S.W.2d 723, 727 (Tex. 1965) —while recognizing that those rights are not absolute because "protection of the child is paramount"); see also In re A.B......
  • State v. Naylor (In re State), No. 11–0114
    • United States
    • Supreme Court of Texas
    • June 19, 2015
    ...Bd ., 852 S.W.2d 440, 444 (Tex.1993), and appellate standing is typically afforded “only to parties of record,” Gunn v. Cavanaugh, 391 S.W.2d 723, 724–725 (Tex.1965). Consequently, an appeal filed by an improper party must be dismissed. Id . We always have jurisdiction to resolve questions ......
  • Request a trial to view additional results

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