This appeal is from a judgment in a habeas corpus proceeding in the district court of the Seventeenth Judicial district awarding the care, custody, and control of two minor children of tender years, William and Catherine Cox, to appellee. The proceedings show that appellant is the father and appellee the mother of said children, and that appellant resides in the state of Mississippi and appellee in Tarrant county, Tex.
But a single assignment of error is presented. Therein complaint is made of the action of the court in sustaining appellee's objection to the introduction of a certified copy of a judgment and final decree rendered in the suit of James H. Cox v. Rozena Cox, No. 1180, on the 9th day of April, 1918, by the chancery court of the Fourth judicial district of the state of Mississippi. The judgment purports to be a decree for a divorce between the parties to this proceeding. The decree awards the care, custody, and possession of the infants named to the petitioner. Appellant insists that the decree was admissible and conclusive upon the issues involved in this proceeding by virtue of the "full faith and credit" clause of the United States Constitution.
We pretermit, as unnecessary, a discussion of the question of jurisdiction of the Mississippi court and of the legal effect of the judgment as presented, for the reason that we conclude that a full answer to the assignment is to be found in the fact that there was no plea of such judgment in the petition upon which the parties proceeded to trial. It is true that in the original petition filed by appellant, who instituted the proceedings, the judgment was pleaded as conclusively determining appellant's right and fitness for the care, custody, and control of the children named. After appellee's answer, however, had been filed, appellant presented and had filed his first amended original petition. The amended petition is introduced in the following language:
"Petitioner, James H. Cox, after having first had and obtained leave of the court, files this his first amended original petition and application for habeas corpus, in lieu of the original filed herein on September 26, 1918, so as to aver as follows."
In the following allegations no reference whatever is made to the decree of divorce originally declared upon. In substance, it is only averred that the minors named had been unlawfully and illegally taken from the possession of the petitioner and restrained of their liberty; that the petitioner was amply able and fully competent and worthy of the further and future care, custody, and control of said children; and that it was for the welfare and best interest of said minors, they and each of them, that they be continued in the possession of the petitioner.
Rule 12 (142 S.W. xviii), promulgated for the guidance of the district court, provides that an amendment to a pleading may be made by either party, upon leave of the court for that purpose; the function of the amendment being to add something to, or withdraw something from, that which has been previously pleaded, so as to perfect that which has been incorrectly stated by the party making the amendment.
Rule 14 (142 S.W. xviii) reads as follows:
"Unless the substituted instrument shall be set aside on exceptions for a departure in pleading or on some other ground, the instrument for which it is substituted shall no longer be regarded as a part of the pleading in the record of the cause, unless some error of the court in deciding upon the necessity of the amendment, or otherwise in superseding it, be complained of, and exception be taken to the action of the court, or unless it be necessary to *Page 628 look to the superseded pleading upon a question of limitation."
A consideration of these rules renders it apparent that the judgment, as a determinative factor in the proceeding, was not an issue in the trial before the court below, for it is too well settled to require a citation of authorities that if the petitioner desired to rely upon the judgment as effective it was necessary that he plead it. Because, therefore, of the absence of a proper plea, the court properly excluded the judgment, it having no evidentiary force except that given by the full faith and credit clause of the Constitution referred to.
Moreover, it may be added that the fact, if established, that at the date of the Mississippi judgment, April 9, 1918, appellant was the proper person to whom to commit the care, custody, and control of the children, and that it was then for the best interest of the children that they be committed to him, would not deprive the district court of Texas, before which this proceeding was instituted, of the power of determining whether it was then, viz. September 30, 1918, for the best interest and welfare of said children that their custody and control should remain with the father. See Anderson v. Cossey, No. 9132, 214 S.W. 624, decided by this court June 21, 1919, not yet officially published. It was there held, and we approve the ruling, that the paramount issue in the proceedings of this character is whether or not the best interest of the minor demands that its care and custody should be taken from one person and committed to that of another. Appellee in her answer, among other things, alleged such acts of cruelty, outrageous conduct, and other circumstances as made, so it was averred, appellant an unfit person to continue in the care and custody of the minors; the appellee's ability and worthiness to have such control. No complaint is made on this appeal of the insufficiency of the evidence to support the judgment in appellee's favor on the issues actually presented, and we think the assignment of error mentioned should be overruled and the judgment affirmed.
Judgment affirmed.