Lanning v. Gregory

• Decision Date: 30 January 1907
• Citation: 99 S.W. 542
• Court: Texas Supreme Court
• Parties: LANNING v. GREGORY et al.

99 S.W. 542

LANNING v. GREGORY et al.

Supreme Court of Texas.

January 30, 1907.

Certified Questions from Court of Civil Appeals of Fifth Supreme Judicial District.

Habeas corpus on petition of Alice M. Gregory and others against J. W. Lanning, Sr., to recover possession of an infant child. A judgment was rendered in favor of petitioner, from which respondent appealed to the Court of Civil Appeals, which certified questions of law to the Supreme Court.

Looney & Clark and Perkins & Craddock, for appellant. Mock & Doss, for appellees.

BROWN, J.

Certified questions from the Court of Civil Appeals of the Fifth supreme judicial district as follows:

"We deem it advisable to present to the Supreme Court of the state of Texas for adjudication, the following issues of law arising in the above-entitled cause:

"Statement.

"On November 10th, 1905, appellees caused to be filed in the district court of Hunt county, Texas, and presented to the Hon. R. L. Porter, Judge of said court, the following petition for habeas corpus, to wit:

"`The State of Texas, County of Hopkins. To Hon. R. L. Porter, Judge of the Eighth Judicial District: Your petitioner, Mrs. Alice Gregory, joined by her husband, R. E. Gregory, pro forma, respectfully shows that she is entitled to the custody of her minor son, J. W. Lanning, Jr., who is four years of age; that she has been secretly, clandestinely, and forcibly deprived of the custody of her said minor son by J. W. Lanning, Sr., who now has possession and custody of her said minor son, and his said custody of said child is illegal; that your petitioner has reasons to believe, and does verily believe, that the said J. W. Lanning Sr., with her said son, J. W. Lanning, Jr., is now in Hunt county, Texas, that your petitioner fears that the said J. W. Lanning, Sr., will remove the said child, J. W. Lanning, Jr., without the state of Texas and effectually conceal his whereabouts from your petitioner. Wherefore your petitioner prays your honor for your most gracious writ of habeas corpus directed to the sheriff or any constable of Hunt county, Texas, and directed to the said J. W. Lanning, Sr., commanding them to produce the said J. W. Lanning, Jr., before your honor at such time and place as your honor shall designate, to the end that the said minor child may be restored to your petitioner. Alice Gregory.

"`Sworn to and subscribed before me this 10th day of November, 1905. Jno. T. Ferguson, Notary Public, Hopkins County, Texas. [Seal.]'

"The judge's flat indorsed on this petition directed the clerk of the district court of Hunt county, Tex., to issue the writ of habeas corpus as prayed for, returnable before him at the courthouse of said county instanter. The writ was issued on November 10, 1905, and executed by the sheriff of Hunt county on the 11th day of November, 1905, by taking charge of the person of J. W. Lanning, Jr., and carrying him before the court as directed. The respondent, J. W. Lanning, Sr., on the same day, viz., November 11, 1905, filed his answer to the writ, denying the right of the relator, Mrs. Gregory, to the custody of the child, and, for the reasons alleged by him, asked that his custody be awarded to him. Both parties urged that a hearing of the matter be had as soon as possible, and, in deference to their request, the trial was begun that evening, November 11, 1905, and resulted in a judgment of the court awarding the custody of the child to the relator, Mrs. Gregory, until he arrived at the age of 12 years, after which time his custody was given to the respondent. From this judgment the respondent, J. W. Lanning, Sr., has appealed.

"Relator and respondent were both reared in Limestone county, Tex., and married six or seven years ago. The little boy, whose custody the mother seeks to recover in this proceeding, is the fruit of that marriage, born in the state of Texas, and at the time of the trial in the district court was four or five years of age. Respondent and relator moved to Sulpher Springs, in Hopkins county, where they resided for several years. In the month of February, 1904, they separated, the respondent about two months later going to Monroe, La., where he has since resided. The relator instituted a suit for divorce against respondent in the district court of Hopkins county, in which she also prayed for the custody of their said child. In the month of August, 1904, the divorce suit was tried, and the divorce granted, but, by agreement of the parties,...