This is an appeal from an order of the 112th District Court of Pecos County, originating in a habeas corpus proceeding instituted to test the alleged illegal restraint of a four-year-old female child, the daughter of Norris.
The child, Vera Lynn Norris, is the issue of Norris and a former wife. Norris and his former wife were divorced on the 12th day of June, 1950, by a decree of the 112th District Court of Upton County, and the care and custody of the child awarded to the mother with the right of reasonable visitation.
The mother of the child died at Lubbock, Texas, December 7, 1951. Mrs. Knollhoff, a sister of the deceased mother, and her husband, removed the child following the death of the mother to their residence in Lamb County, Texas. Norris, learning of the death on the 10th of December, 1951, by telephone made request of the Knollhoffs for the possession of the child, which was declined. The request was repeated on the 15th, and again declined. On that date Norris presented an application to the Judge of the 112th District Court of Pecos County for a writ of habeas corpus. In the application the facts above stated were set up, to which was added that he was and had been for something like one and one-half years a resident of Pecos County; that on the death of the mother the care and custody of the child immediately, under the law, vested in him as the sole surviving natural parent. The Judge issued the writ over his official signature directed *Page 435
"To the Sheriff or any Peace Officer of the State of Texas",
reciting therein that it had been made to appear to him 'by satisfactory evidence' the child, a resident of Pecos County, was held in illegal custody by the Knollhoffs at Sudan in Lamb County, Texas, and directed that she be forthwith brought before him in Pecos County. The child was taken in custody by the Sheriff of Lamb County and delivered by him to the Sheriff of Pecos County, who delivered her into the possession of the Judge. He delivered her to the father. The Knollhoffs filed in due form a plea of privilege asserting their privilege to be sued in Lamb County. Pending the final disposition of the plea of privilege the child was returned by an order of the Court to the Knollhoffs. The plea was duly controverted, repeating the allegation of facts recited in the application for the writ, and saying custody had already been fixed as a matter of law and was not an issue; that the residence of the child was fixed in Pecos County already; that the child had been wrongfully and illegally deprived of its residence in Pecos County by the removal to Lamb County; that the order of the Court returning the child to the Knollhoffs was void and her removal from Pecos County by virtue of the purported order was wrongful and because of each of which facts a trespass had been committed in Pecos County and venue, therefore, fixed under the 9th exception to the general venue statute, Vernon's Ann.Civ.St. art. 1995. The matter was heard and the Court overruled the plea of privilege, from which this appeal is prosecuted.
Appellant's three points are the Court erred in overruling their plea of privilege, this being a child custody case and they being residents of Lamb County; there being no trespass or other grounds of venue in Pecos County alleged, and there being no trespass shown to have been committed in Pecos County.
It must be readily admitted when a writ of habeas corpus is resorted to as a form of procedure to litigate questions as to the custody and care of a child and to ascertain what would be to the best interest of a child it is a civil action and subject to the venue statute, but such is not this case. The care and custody was already determined at the time this proceeding was initiated and vested immediately on the death of the mother in the father, and her residence and domicile fixed as that of the father. Peacock v. Bradshaw, 145 Tex. 68, 194 S.W.2d 551. Norris did not seek the writ to determine the custody of the child. He already had it. His sole purpose was to relieve the child of the illegal restraint. When relieved of that restraint he, of course, obtained possession of her, and that was a primary object of the proceeding, it must be conceded. The action of Norris was in defense and preservation of his custody and not to fix it. However, the Knollhoffs were not parties to the proceeding. They were not directed to produce the child or otherwise given notice of the proceeding, because it was not necessary since no right of theirs was involved. They were as much strangers to the proceeding, in a legal sense, as any other third party. They had no legal rights which it may be assumed the Judge determined from 'the satisfactory evidence' heard by him before he issued the writ. Of course the kindly act in taking the child into tender care is commendable and is in no wise to be criticised. The proceeding was in all respects ex parte. The Knollhoffs have not yet asserted any rights to the custody of the child.
What is said in Lloyd v. Smith, Tex.Civ.App., 203 S.W.2d 793, at page 795(3), is thought to be applicable and directly in point in the instant case. Neither that case nor this, as there said, is in any sense a child custody case. Custody is not an issue, but the sole question is 'Was the child wrongfully and illegally restrained at the time the writ issued?' This case perfectly illustrates how one may have the care and custody and not the possession of a child. It is thought the case of Wright v. Wright, Tex.Civ.App.,285 S.W. 909, is also in point. It certainly would be a novel absurdity if anyone, more especially a stranger, could deprive a small child of its domicile and a parent of its lawful possession and rob the writ of habeas corpus of one of its most important functions-speedy relief from illegal restraint-by the simple *Page 436 expedient of filing a formal plea of privilege when no legal right or interest is asserted or can be, and compel the child and parent to defend the domicile and custody in a distant forum. Possession and the right thereto follows the custody, but custody does not necessarily follow possession.
It would serve no purpose to review the cases cited by Appellants and distinguish them. It may be said in each of them, as we understand them, the issue of custody was made by some pleading in the cases, which is not true here.
It is our conclusion the judgment of the trial court is correct and it is affirmed.