Nelson v. Clifton

• Court: Texas Court of Appeals
• Writing for the Court: Long
• Citation: Nelson v. Clifton, 202 S.W.2d 471 (Tex. App. 1947)
• Decision Date: 11 April 1947
• Docket Number: No. 2561.,2561.
• Petition History: writ ref'd n.r.e.
• Parties: NELSON et al. v. CLIFTON, Sheriff.

Page 471

202 S.W.2d 471

NELSON et al. v. CLIFTON, Sheriff.

No. 2561.

Court of Civil Appeals of Texas. Eastland.

April 11, 1947.

Rehearing Denied May 23, 1947.

Appeal from District Court, Haskell County; B. C. Chapman, Judge.

Proceeding by Mart Clifton, Sheriff of Haskell County, to have James and Jimmie Nelson, minors, declared dependent and neglected children. From a judgment declaring the children neglected and remanding them to their parents' custody subject to the district court's jurisdiction and direction, the parents and children appeal.

Affirmed.

T. R. Odell, of Haskell, for appellants.

Fred Stockdale, of Fort Worth, for appellee.

LONG, Justice.

Mart Clifton, sheriff of Haskell County, filed a petition in the District Court of said County alleging that James and Jimmie Nelson, twin boys under the age of sixteen years, were dependent and neglected children. James L. Nelson and Inez Nelson, father and mother respectively of said children, answered said petition by general denial and leveled a number of exceptions thereto. A similar answer was filed by Hon. T. R. Odell, attorney for said children; trial was had before the court and jury. The jury in response to special issues found that James and Jimmie Nelson were not dependent children; that such children were neglected children but refused to recommend that their custody be taken from the parents and placed with some person or institution. Based upon the findings of the jury, the court rendered a judgment declaring such children to be neglected children and remanded them to the custody of their parents and directed that they be permitted to remain in their own home under the care and control of their parents, subject to the jurisdiction and direction of the court.

Following the overruling of a motion for a new trial, the parents and children duly appealed to this court.

Appellants contend that the District Court was without jurisdiction to try the defendants under the Juvenile Delinquency Act, Vernon's Ann.Civ.St. art. 2329 et seq., for the reason that it is shown that each of said children was under nine years of age and for the reason the legislature repealed Article 2329, Rev.Civil Statutes, and that the District Court no longer has jurisdiction over dependent and neglected children. We cannot agree with this contention. The 48th Legislature did repeal Article 2329, however, when Article 2338 — I was passed establishing a Juvenile Court and defining its jurisdiction, the legislature provided in Section 24-A of said article that this Act should in nowise alter or affect existing laws with reference to dependent and neglected children, as that term was defined by Article 2330, Rev.Civil Statutes, and the District Court only should have original jurisdiction in all proceedings wherein it is sought to have a child adjudged to be a dependent and neglected child. This case was brought under Article 2330 and the court in submitting the case to the jury submitted the substance of such article in his charge. The petition alleged that the children were under sixteen years of age and that they were dependent and neglected children, therefore, we hold that the District Court did have jurisdiction of the case.

Appellant challenges the sufficiency of the evidence to support the findings of the jury that James and Jimmie Nelson were neglected children. The appellee alleged and the proof supported the allegation that James and Jimmie Nelson had broken into several houses and had depredated upon the private property of certain individuals in Haskell County. It was shown that they broke into the office of the Grain and Mill Elevator, East Side Baptist Church and the office of the Co-op Gin in Haskell, Texas. They did considerable damage to each of the places that they entered.

At the Grain and Mill Elevator office they removed some fountain pens and hid them under the building. They took the papers out of the file and scattered them over the floor. The receiver was cut off the desk telephone and thrown across the room from where the telephone was located.

At the Gin office they turned over the safe and hammered on the knob. The typewriters in the office had been beaten up and papers scattered on the floor, some of which had been burned. The father of the boys was not convinced that they had turned over the safe in the Gin office, and the sheriff in company with the father took James and Jimmie to the Gin office and they demonstrated that they could and did turn the safe over.

After the East Side Baptist Church had been broken into by James and Jimmie, it was discovered that it had been damaged to a great extent. Part of the damage done was denied by James and Jimmie but we are of the opinion that evidence was sufficient to justify the jury in believing that they did the damage to the church. We quote from the testimony of Reverend Priddy, pastor of the church, relative to the condition of the church after it was broken into:

"A. On the evening of March 26th Sheriff Clifton came down to my home, February 26th, came down to my...