Wilson v. Elliott

• Decision Date: 20 May 1903
• Citation: 75 S.W. 368
• Parties: WILSON v. ELLIOTT.
• Court: Texas Court of Appeals

75 S.W. 368

WILSON v. ELLIOTT.

Court of Civil Appeals of Texas.

May 20, 1903.

Appeal from District Court, El Paso County; A. M. Walthal, Judge.

Habeas corpus by Leander F. Elliott against Effie M. Wilson to obtain custody of an infant child of the parties. Judgment for petitioner, and respondent appeals. Affirmed.

S. P. Weisiger and Turney & Burges, for appellant. Clark, Fall, Hawkins & Franklin, for appellee.

JAMES, C. J.

This is a habeas corpus proceeding by appellant, the father of an 11 year old daughter, to obtain the custody of the child held by appellant, its mother. On May 4, 1899, the parties were divorced by decree of the district court of New Mexico. In that, and in proceedings supplemental thereto, that court entered decrees, the substance of which, as finally made, was that the father should have the custody of the child, with the provision "that the child should be permitted to visit its mother once a year for the period of one month during the month of July; that said visits shall be made within the territory of New Mexico, and the said child shall not be removed from said territory by her mother." The said court had jurisdiction of the parties, including the child. The mother remarried in New Mexico, and afterwards she and her husband removed to El Paso, Tex.; she bringing with her the child, in disregard of the said decree.

At the trial of the present case the parties introduced testimony concerning the character, conduct, and fitness of each other prior to and since the said decree, but the district judge, as shown by conclusions on file, held that the territorial decree was binding on him, under the Constitution and laws of the United States; and, as is evidenced by the certificate to the statement of facts, the court refused to consider as evidence on the trial any evidence of any fact that occurred prior to the decree of divorce in New Mexico, excepting the proceeding in said New Mexico court, "as set out and shown in Exhibit A, hereto attached." This exhibit consists merely of the pleadings and decree. It is made quite clear that the judge treated the decree as res adjudicata, absolutely, and as entitling the father to possession of the child, and that all he could consider was evidence of changed conditions of the parties since the said decree, bearing on their fitness and the best interests of the child. The judge expresses his conclusion in these words: "I find that, since the decree or the modified or amplified decree as to the custody of the child, there has been no material change in the status or condition of said parties as to their fitness or qualification as proper custodians of said child." In other words, the New Mexico decree was held to determine all facts existing prior to its date in favor of the father's right to its custody, and only such facts could be considered to disturb that adjudicated right as may have come into existence since that time. We were of opinion that the judge was in error in giving such effect to the decree in this character of case, and filed an opinion so holding; but on motion for rehearing we certified the question to the Supreme Court, and in the opinion of the Supreme Court, delivered in answer to the question (see 73 S. W. 946, 7 Tex. Ct. Rep. 238), the view of the district judge was sustained. It being our duty to observe and follow the decision of the Supreme Court in the disposition of the case, we hold there was no error in giving the territorial judgment such effect.

This practically disposes of the first, fourth and ninth assignments of error; also the second, under which the contention...