Gunn v. Cavanaugh, 11290

Decision Date16 December 1964
Docket NumberNo. 11290,11290
PartiesRichard GUNN, Appellant, v. Calvin J. CAVANAUGH and Wife Inoyce, Appellees.
CourtTexas Court of Appeals

Paul Petty, Ballinger, for appellant.

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

ARCHER, Chief Justice.

On April 2, 1964 Calvin J. Cavanaugh and wife, Inoyce Cavanaugh filed their petition in the District Court of Runnels County, Texas, to adopt Richard Keith Gunn, Ronald Wade Gunn and Ruth Ann Gunn, all under the age of four years, and children of Richard Gunn and Barbara Gunn, apparently divorced, but no showing is made as to the custody of the children.

Service was not asked for and none had on Richard Gunn and no appearance was made by him.

Barbara Gunn filed her consent to adopt in writing.

An allegation was made in the petition that 'the father, Richard Gunn, has deserted the said children' but no details or circumstances were made as to the alleged desertion or the length of such abandonment, or that Richard Gunn's parental rights had been terminated by a court of competent jurisdiction.

Subdivision (6) of Sec. 1a of Article 46a, Vernon's Ann.Civ.St., sets out what a petition to adopt shall set forth. Woodall v. Schmudlach, Tex.Civ.App., 299 S.W.2d 780; Ex parte Blackstock, Tex.Civ.App., 319 S.W.2d 167; Jones v. Willson, Tex.Civ.App., 285 S.W.2d 877.

On May 25, 1964 an order was entered granting leave to the petitioners to adopt the children, and in this order it was again stated that Richard Gunn, the father, had deserted the children.

On August 31, 1964, appellant filed a petition for writ of error, alleging that he had not consented to the adoption, had not been served with citation or notice and had not participated either in person or by an attorney in the trial of the case, and plead that the court did not have jurisdiction to hear and dispose of the action and that he desired to remove the case to the Court of Civil Appeals.

Request was made to the trial court for an order directing the Clerk of that court for a transcript of the proceedings. This request was overruled by the trial court stating but not intended to prohibit the Clerk from performing any function she is supposed to perform.

The transcript was filed in this Court on September 29, 1964 in Cause No. 11,290.

On October 29, 1964, the appellees filed their Motion to Dismiss the Appeal on the ground that appellant was not a party to the adoption proceedings, and such not being...

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1 cases
  • Gunn v. Cavanaugh
    • United States
    • Texas Supreme Court
    • June 9, 1965
    ...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......

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