Strode v. Silverman

• Decision Date: 20 January 1949
• Docket Number: No. 2837.,2837.
• Parties: STRODE et ux. v. SILVERMAN.
• Court: Texas Court of Appeals

Page 454

217 S.W.2d 454

STRODE et ux. v. SILVERMAN.

No. 2837.

Court of Civil Appeals of Texas. Waco.

January 20, 1949.

Rehearing Denied February 17, 1949.

Appeal from District Court, Limestone County; H. F. Kirby, Judge.

Habeas corpus proceeding by Mrs. Sarah Silverman against J. W. Strode and wife to recover the custody of petitioner's minor child. From a judgment awarding the child's custody to petitioner and an order overruling respondents' motion for a new trial, respondents appeal.

Affirmed.

Carl Cannon, of Groesbeck, and Owen F. Watkins, of Mexia, for appellants.

W. W. Mason, of Mexia, and Bradley & Bradley and L. L. Geren, all of Groesbeck, for appellee.

HALE, Justice.

This is a child custody case. Appellee gave birth to the child in controversy on September 8, 1943. During the latter part of 1944 she placed the child in the possession of appellants who, without notice to her, procured an adoption decree in the court below on August 13, 1947. Upon learning that the decree of adoption had been entered, appellee instituted suit against appellants in the court below to have the same set aside. On December 2, 1947, the adoption decree was set aside and upon appeal to this court the judgment of the trial court was affirmed. For a full statement of the issues involved on the former appeal see: Strode et ux. v. Silverman Tex.Civ.App., 209 S.W.2d 415 (er. ref. n. r. e.).

Appellee instituted the present proceeding on December 29, 1947 by filing in the court below her application for a writ of habeas corpus based upon allegations that her daughter was being illegally restrained of her liberty by appellants. The writ was duly issued and served upon appellants, commanding them to produce the child in court on January 2, 1948 and show cause why they were holding her in custody. In response to the writ appellants filed a plea to the jurisdiction of the court alleging, among other things, that they had perfected their appeal to this court from the judgment of the trial court setting aside its prior decree of adoption, that they had superseded the judgment appealed from by a proper supersedeas bond and that a hearing on appellee's application for a writ of habeas corpus on January 2, 1948 would constitute an invasion upon the jurisdiction of this court over the subject matter involved in the pending appeal. The trial court overruled the plea of jurisdiction on December 31, 1947 and the next day this court, upon the application of appellants, issued a temporary restraining order, followed on January 20, 1948 by a temporary injunction and writ of prohibition, restraining appellee and prohibiting the court below from proceeding further on appellee's application for writ of habeas corpus until the pending appeal could be disposed of in this court.

The judgment of the trial court setting aside its prior decree of adoption was affirmed by this court on February 26th and appellants' motion for rehearing was denied on March 18, 1948. Appellants applied to the Supreme Court for a writ of error but their application was refused and their motion for rehearing on the application was overruled on June 2, 1948. One of the attorneys for appellee then contacted both of the attorneys representing appellants in order to ascertain whether their clients desired to contest the asserted right of appellee to the custody of her daughter under her pending application, advising that if such contest was desired he would insist upon a hearing of the same on June 12, 1948. Appellants filed their answer contesting the application of appellee on June 11th. The trial court heard the contested application on June 12, 1948 in the absence of appellants' counsel without the aid of a jury and rendered judgment awarding the child's custody to appellee.

On June 14th appellants filed in the cause their motion for new trial. They alleged therein that they did not have legal notice of the trial which was had on June 12th and were thereby prevented from presenting to the court their testimony showing they were entitled to the child's custody; that on appearance day, June 8, 1948, the cause had been set down in open court for a trial to be had on June 21, 1948; that appellants' counsel had then requested a jury for the trial and had duly deposited a jury fee; that the trial court had failed to order a jury for the trial on June 12th; and that neither appellants nor their attorneys had been given legal notice of the change in the date of the trial from June 21st to June 12th. The motion for new trial was submitted to the court below upon an agreed statement of facts consisting of 11 ex-parte affidavits, including those of the trial judge and each of the attorneys for both parties, and was overruled.

Appellants say the trial court erred in overruling their motion for new trial because the right of a litigant to be represented by counsel of his selection, familiar with the cause, is a valuable right, and that an unwarranted denial of such right constitutes ground for a new trial. They further say that where a jury has been applied for in a civil action and the jury fee has been paid, a jury trial is imperative in the absence of a withdrawal of the application or a waiver of such right and that the absence of a party demanding a jury trial or of his attorneys when the case is called for trial is not sufficient to constitute a waiver of the right of a jury trial.

We...