Quick v. Lindsay, 11951.

• Decision Date: 12 February 1948
• Docket Number: No. 11951.,11951.
• Citation: 208 S.W.2d 910
• Parties: QUICK et al. v. LINDSAY.
• Court: Texas Court of Appeals

208 S.W.2d 910

QUICK et al. v. LINDSAY.

No. 11951.

Court of Civil Appeals of Texas. Galveston.

February 12, 1948.

Rehearing Denied March 4, 1948.

Appeal from District Court, Harris County; Wilmer B. Hunt, Judge.

Proceeding by Albert H. Lindsay against J. L. Quick and others involving custody of children. From order overruling defendants' plea of privilege, the defendants appeal.

Reversed and rendered.

Burford, Ryburn, Hincks & Ford, Logan Ford, and Roy L. Cole, all of Dallas, for appellants.

Merrill & Scott and Frank L. Merrill, all of Houston, for appellee.

CODY, Justice.

This is an appeal from the order of the 55th District Court of Harris County overruling defendants' plea and supplemental plea of privilege to be sued in Dallas County, Texas, the County of their residence. The parties are disagreed as to the nature of this proceeding. It is the position of defendants that this is a suit concerning the custody of two children, born of the former marriage between plaintiff, Albert H. Lindsay, and one of the defendants, Dorthy Lindsay Pressler. The position of plaintiff is that this is a proceeding instituted by plaintiff to enforce his lawful custody of said children.

Preceding the institution of this present proceeding or suit, the following occurred:

In 1944 plaintiff was granted a divorce from defendant Mrs. Pressler by the 68th District Court of Dallas County. The children of their marriage were then 2½ years and 17 months old, respectively. Their custody, in the divorce decree, was awarded to defendants herein, Mr. and Mrs. J. L. Quick, the maternal grandparents of the children, for nine months of each year, with the right of visitation in plaintiff herein for one Sunday each month, with the further right of plaintiff to have the children for two forty-five day periods in each year, with the right of visitation during such forty-five day periods in Mr. and Mrs. Quick. No express right of visitation in the present Mrs. Pressler was provided for in the order. At the time of the divorce all parties then concerned lived in Dallas County.

By March of 1946 Mr. and Mrs. J. L. Quick had moved their residence to Harris County. At that time plaintiff herein filed suit in Harris County, being cause No. C-328,298, in the 55th District Court against the Quicks, alleging changed conditions, and seeking custody of the children. As a result of that suit general custody was awarded to plaintiff as of March 27, 1946, with the right in the Quicks to have the children for six weeks in the summer of each year, the first such period beginning with July 6, 1946. The judgment was silent as to rights of visitation of Mrs. Pressler. She was not made a party to such suit.

On August 17, 1947, plaintiff filed the present proceeding, using the same docket number, C-328,298, as that under which the suit was filed in March of 1946. In addition to the Quicks, Mrs. Pressler and her husband, and Mr. and Mrs. Jordan, the brother and sister-in-law of Mrs. Pressler, were named defendants. In his petition instituting this proceeding, after alleging such foregoing matters, plaintiff alleged that when he again sought the children from the Quicks on August 17, 1946 (which was the end of the first period of custody that the Quicks were entitled to under the order of March 27, 1946), he found that the Quicks had moved with the children to Dallas. That thereupon plaintiff obtained a writ of habeas corpus from the court in aforesaid cause No. C-328,298, in order to regain custody of the children from the Quicks, but the Quicks evaded service thereon, and that plaintiff was only able to get his children back in early 1947. That defendants then began a concerted plan of harassment of plaintiff, to evade which, and the threats of defendants to kidnap the children, plaintiff moved with the children to Alabama. That the defendants, Mr. and Mrs. Pressler and Mr. and Mrs. Jordan, about July 15, 1947, removed the children from the home in Alabama where plaintiff was keeping them, and fled with them, and returned to Texas, to join defendants Quick. Then, after alleging the children are being illegally restrained of their liberty by defendants or one or more of them, plaintiff alleged in paragraph X of his pleading, "that plaintiff verily believes that he cannot rear his children in peace and in a proper manner of childhood freedom unless defendants and each of them are restrained from coming about said children or communicating with them, or communicating with or harassing plaintiff."

The pleading closed with the prayer for a writ of habeas corpus, and that defendants be required to show cause, "if any they have, why they and each of them should not be restrained and enjoined from interfering in any manner with plaintiff's custody of said children, from harassing plaintiff or communicating with him, and from coming about or seeking to visit said children, and for such final orders with respect to the custody of said children as to the court may seem proper, and for such permanent ancillary orders as, under the evidence, the court deems proper in order to effectuate a proper disposition of the question of the custody of said children * * *."

As indicated above, defendants seasonably filed their plea and supplementary plea of privilege to be sued in Dallas County, alleging that Mrs. Pressler was not bound by the court's order of March 27 of 1946. Plaintiff seasonably filed his controverting affidavit, asserting that the Court had venue under Subd. 4 and Subd. 29a of Article 1995, Vernon's Ann.Tex.Stats. The court overruled such plea and supplemental plea of privilege, finding in his judgment: That on August 19, 1947, and thereafter all of the defendants were residents of Dallas County; that the facts contained in the supplemental plea of privilege filed by Mrs. Pressler and her husband are true. The boiled down substance of such supplemental plea of privilege, filed by Mr. and Mrs. Pressler, was that Mrs. Pressler was not a party to the proceeding culminating in the order of March 27, 1946, and same was not res adjudicata of any of her rights.

Defendants predicate their appeal on three points. They are as follows:

"Point One. The trial court erred in overruling defendants' plea of privilege for the reason that plaintiff's petition has for its purpose the changing of many provisions of the child custody decree of March 27, 1946, and therefore constitutes a new and independent cause of action to which the general venue statute applies. There being no applicable exception to the venue statute involved here, defendants are entitled to be sued in Dallas County, where each and all of them reside.

"Point Two. The trial court's order overruling defendants' plea of privilege is in direct conflict with the holding of Green v. Spell [Tex.Civ.App.], 191 S.W 2d 92, writ refused, Spell v. Green , 192 S.W.2d 260.

"Point Three. The trial court erred in overruling the plea of privilege of defendants Dorothy and W. R. Pressler, since they were neither parties to nor involved in the custody suit of March, 1946, and the present suit is therefore an entirely new cause of action as to them. The trial court having found that neither she nor any of the other defendants reside in ...