This is a child custody case. On original submission, a majority of the Court — Mr. BOND, Chief Justice, dissenting — held that, as plaintiff failed to perfect an appeal from the judgment below overruling her plea of privilege, that question was not before the Court for adjudication, therefore, after considering the facts established below, affirmed the judgment awarding custody of the child to R. H. Burton, the appellee. After considering appellant's motion for rehearing, Mr. YOUNG, Associate Justice, receded from his original opinion and concurred in the view expressed by Mr. BOND, Chief Justice, in his dissenting opinion, to the effect that, appellant had properly perfected an appeal from the judgment overruling her plea of privilege; therefore, the majority sustained appellant's motion for rehearing, set aside the former judgment of this Court, reversed the judgment below, sustained appellant's plea of privilege and changed the venue of the cause, for trial on its merits, to the District Court of Jack County, where appellant resides.
Believing that the first decision rendered by the majority was correct, I dissent from the final decision of the majority, and, as the opinion filed by Mr. YOUNG, Associate Justice, for the majority, fails to state the origin, nature, or history of the cause, I shall attempt to do so without which, in my opinion, neither the majority holding nor my dissent can properly be understood.
Origin, Nature and History of the Case.
On December 12, 1938, Lemon H. Burton and Mary Cecelia Burton were divorced by a decree of the District Court of Rockwall County, and the custody of their only child, a son, William Henry Burton, now about eight years of age, was awarded part time to each parent. After the divorce, Mary Cecelia married Dudley (or Dick) Conlee, and for some time prior to December 20, 1941, resided with her second husband at the town of Bryson, Jack County, Texas; and it was there she kept the child during the periods she was entitled, under the orders of court, to have his custody. On December 20, 1941, Lemon H. Burton, the father, was at Bryson, presumably to take charge of his son as authorized by the divorce decree, when he was shot and killed by Conlee, the wife's second husband. On December 24, 1941, Robert H. Burton, appellee herein, a brother of the deceased, *Page 721 filed an original action alleging in short the precedent facts, including the recent slaying of the boy's father by the present husband of the mother, contending that, if she is permitted to retain custody of the boy, he would be compelled to reside in the home with, and under the domination and control of, the man Conlee who just recently slew the boy's father, which would prove highly detrimental to the best interest of the child, of such fundamental and radical nature as to require that his custody be taken from the mother and permanently given to appellee, who was not only willing and anxious to have custody of the child, but was able to furnish him a good home, wholesome environment, and educational advantages, etc. The court entered an order setting the hearing thereon for the 17th day of January, 1942, and placed the boy, pending the hearing, in the custody of his uncle, appellee herein.
On January 14, 1942, the appellant, Mrs. Conlee, who resides at the town of Bryson, Jack County, Texas, filed a plea of privilege to be sued in the county of her residence, which was duly contested by appellee. The plea and contest were heard on January 17, 1942, resulting in judgment for appellee, sustaining the contest and overruling appellant's plea; to which, she excepted and gave notice of appeal. Thereupon, on January 17, 1942, appellant filed her answer to appellee's petition, the parties announced ready, and, after hearing evidence, the court sustained the contention of appellee, awarded him the care and custody of the minor, William Henry Burton, however, ordered that the mother, Mary Cecelia Conlee, be privileged to see him at all convenient times, but that, the boy should not be taken or removed by her from Rockwall County; to which, appellant excepted and gave notice of appeal.
As will be observed from the statement given, two distinct trials were had, two pleadings filed by appellant: First, a plea of privilege filed January 14, 1942, which, being contested, was tried on January 17th and overruled; appellant excepted and gave notice of appeal; thereupon, she filed her answer to the merits, and, on trial of the case, final judgment was rendered, awarding custody of the minor to the appellee; to which, appellant excepted and gave notice of appeal. Notwithstanding two trials, as distinct and separate as if occurring at different terms of court, and, obviously, at appellant's own behest, as she failed to file an answer to the merits until after the venue question was settled, only one appeal bond was filed, which, according to its recitals, obviously pertained to and perfected appeal from the final judgment. This, I submit, is apparent from its language, as follows: "Whereas, in the above numbered and entitled cause pending in the District Court of Rockwall County, Texas, on the 17th day of January, 1942, a judgment was rendered overruling the Privilege of Mary Cecelia Burton Conlee, and further the court rendered final judgment awarding the custody of William Henry Burton to R. H. Burton, and judgment for cost, from which final judgment and order the defendant Mary Cecelia Burton Conlee desires to perfect an appeal to the Court of Civil Appeals for the Fifth Judicial Supreme District of Texas, at Dallas, Texas:" etc.
Separate trials mean separate appeals. This, I submit, is contemplated by the new Rules that prescribe separate procedure, as follows: Appeals from final judgments are perfected by filing with the clerk below a bond within thirty days after the date of the judgment or order overruling motion for a new trial, Rule 356, and by filing the transcript and statement of facts in the Court of Civil Appeals within sixty days from the final judgment or order overruling the motion for new trial, etc. Rule 386. Whereas, appeals from interlocutory judgment (including orders overruling or sustaining pleas of privilege) are perfected by filing bond with the clerk below and the record in the Appellate Court within twenty days after the rendition of the judgment appealed from. Rule 385. In Newlin v. Smith, 136 Tex. 260, 150 S.W.2d 233, decided before the new Rules were adopted, the Supreme Court held that a defendant is entitled to have the venue issue determined before he is compelled to try the case upon its merits, and that it is reversible error to refuse request of a defendant for separate trials. Also, see Saladiner v. Polanco, by the Austin Court of Civil Appeals, 160 S.W.2d 531.
However, if it could correctly be said that one bond, properly conditioned and filed within time, may serve the purpose of perfecting both appeals where, as in the instant case, the interlocutory and final judgments were rendered at the same term of court, I submit that the language of the bond itself should be sufficient to accomplish such purpose. The bond in the instant case, as shown by the language quoted, fails in that respect, as it specifically states that *Page 722 appellant desired to perfect an appeal from the "final judgment and order." Appellant insists, however, that the language "from which final judgment and order the defendant, etc., desires to appeal," was a sufficient reference to each to perfect both appeals; contending that the word "order," in the connection used, referred to the interlocutory judgment. It may be true that, in legal parlance, interlocutory actions of court are referred to interchangeably as "judgment" or "order," but, in the instant case, appellant referred to the interlocutory act of the court as a "judgment," and then followed with the language that she desired to appeal from the final judgment and order. The adjective "final" being descriptive of both judgment and order, I do not think it can be said that "order," in the connection used, referred to the interlocutory action of court; it would have been a misdescription; hence a different application and meaning must be given it. As the final judgment awarding custody of the minor to appellee also contained a subsidiary order, giving appellant the right to see the boy at convenient times, conditioned that he should not be taken from Rockwall County, I think it more reasonable to say that, the adjective "final" is descriptive of the judgment awarding custody and the subsidiary order giving appellant the right to see the minor under the conditions and restriction named.
Therefore, I adhere to the views originally expressed, believing that appellant failed to perfect an appeal from the action of the court overruling her plea of privilege, and that the only matter presented to the Court for consideration was the question, whether or not the court erred in awarding to appellee the custody of the minor; hence, I do not think the venue question was before the court for consideration, but that the final judgment below, on the merits, was correct and should have been affirmed.