(dissenting).
I respectfully dissent. In my opinion this writ of mandamus should not be granted. Assuming that the Court of Civil Appeals exceeded its jurisdiction in granting the writ of mandamus, yet that in itself does not justify or warrant the court’s actioni in setting it aside at the behest of these re-lators.
There are certain well-established rulei that govern the exercise of this extraordinary power. Mandamus is not issued as a matter of right, but rests largely in the sound discretion of the court. The writ will not be granted unless the petition shows that the relators have a clear right to the writ. Although mandamus is a common-law writ its issuance is largely controlled by equitable principles. Callahan v. Giles, 137 Tex. 571, 155 S.W.2d 793; Westerman v. Mims, 111 Tex. 29, 227 S.W. 178; Munson v. Terrell, 101 Tex. 220, 105 S.W. 1114; Moore v. Rock Creek Oil Corporation, Tex.Com.App., 59 S.W.2d 815; American Book Co. v. Marrs, 113 Tex. 291, 253 S.W. 817; City of Sherman v. Langham, 92 Tex. 13, 40 S.W. 140, 42 S.W. 961, 39 L.R.A. 258.
In Westerman v. Mims we quoted and adopted the following rule:
“ While the remedy by mandamus is not equitable, but strictly legal, yet by analogy to the principles prevailing in courts of equity it is a uniform requirement that the relator in seeking this remedy must come into court with clean hands.’ ”
In that case we also quoted from American Mortgage Co. v. Rosenbaum, 114 Ohio St. 231, 151 N.E. 122, 59 A.L.R. 1368 :
“The principle involved in this case is not new, but, on the contrary, is very old, very simple, and very fully in accord with good sense and common honesty; that is to say, one may possess a legal right, unconditional in character, with respect to the enforcement of which he may avail himself of all legal remedies applicable thereto, and, still, if the results which must attend and follow the enforcement are such as will shock the conscience of a court of equity, that court, if asked to issue its mandatory injunction as an aid to *106such enforcement, should, in the exercise of a sound discretion, deny the application and leave the party to pursue .his legal remedies. Extraordinary writs are issued by courts of equity to prevent and correct wrongs, but are not employed to promote wrongs.”
Turner v. Fisher, 222 U.S. 204, 209, 32 S.Ct. 37, 38, 56 L.Ed. 165, speaks to the same effect.
In Westerman the relator sought to enforce an undisputed legal right. Nevertheless the writ was denied because the relator did not exhibit good faith and conscience and was in violation of a moral obligation. In that case the court expressly classifies the issuance of a writ of mandamus as discretionary.
We quote from Moore v. Rock Creek Oil Corporation as follows:
“It must be borne in mind that the enforcement of the right is by mandamus. Such a writ is not issued as a matter of right, but in the exercise of a sound judicial discretion which allows the court to view other considerations than the mere legal right of the relator.”
With these principles in mind let us see if the relator, Ancel M. Autry, has acted in good faith, has come into this court with "clean hands” and has shown himself entitled to invoke the equitable powers of this court. Let us consider whether the writ is being employed to correct or promote a wrong.
At the outset of this controversy Autry and his wife, Anita, with their six children were domiciled in Montgomery County, Maryland. More than four years ago Au-try brought the five oldest children to Texas and subsequently announced to Mrs. Au-try that he would not return. Certain proceedings then took place which are not material here. In 1959 Mrs. Autry, having regained possession of the children, filed suit for custody in Maryland, Autry was duly served with process and in that suit filed a plea to the jurisdiction as well as a motion requesting further time to file an answer. Actually he did not answer to the merits. Admittedly the Maryland court had jurisdiction of the subject matter. During the pendency of that suit Autry, without the knowledge or consent of his wife, obtained possession of the children and returned with them to Texas. He has compelled her to retain counsel and defend a suit brought by him in Texas for divorce and custody which the trial court dismissed for want of jurisdiction. That judgment of dismissal was affirmed by the Court of Civil Appeals, 350 S.W.2d 233, and Au-try’s application for writ of error was dismissed by us for want of jurisdiction.
On the 4th day of January, 1961, the Maryland court entered a decree awarding Mrs. Autry the custody of the five oldest children.1 In order to obtain possession of the children to which she had an unqualified right by virtue of the Maryland decree she availed herself of her only possible recourse unless resort was had to force or stealth, namely, that of seeking a writ of habeas corpus from the Van Zandt District Court on January 10, 1961. Au-try thereupon filed his cross-action alleging that due to changed conditions and circumstances that had transpired since the Maryland decree he should be awarded the custody of the children. Due to the unfortunate illness and subsequent resignation of the judge of that court the matter was not set for hearing until February of this year when the successor judge refused to grant to her the possession of the children, holding that the issue of custody must *107be tried on the merits of the cross-action. On application the Court of Civil Appeals granted the writ of mandamus in question here. 359 S.W.2d 272.
Autry’s removal of the children from Maryland after the jurisdiction of the court of that state had attached was wrongful and contemptuous. He made no attempt by legal and orderly process to obtain possession or custody. The determination of the forum to try out the right to custody should not be made to turn on such a circumstance. He has refused to surrender even temporary custody of the children to his wife and has flouted the decision of the Maryland court. In his cross-action filed in the habeas corpus proceeding brought by Mrs. Autry, Ancel Autry seeks the custody of these children alleging that he is a proper person to have the care and custody rather than Mrs. Autry on the ground that he has had and exercised that custody since August 14, 1958, and that during that time the children have been receiving the best of care. In the alternative he asserts that the “conditions have completely changed; that because of the changed conditions it would be meet, wise and advantageous to said minors to place them in the care, custody and control of An-cel M. Autry”. The pleading is wholly silent as to when the conditions changed or what changes took place.
In Short v. Short, Tex., 354 S.W.2d 933, we did hold that under somewhat similar circumstances the district court had jurisdiction to pass upon the question of changed conditions, but in that case the issue had already been tried and a final judgment had been entered. The question here is not so much one of jurisdiction, but whether that jurisdiction should be exercised under the rules of comity. The authorities relied upon in that case have refused to lay down any hard and fast rule. In Wicks v. Cox, 146 Tex. 489, 208 S.W.2d 876, 4 A.L.R. 2d 1, we said:
“The foregoing does not, of course, mean that our courts should take ju-
risdiction to award custody in every case where the child and the parties contending for its possession happen to be here before the court. Nor does it mean that a child’s foreign legal domicile is not an important consideration in cases of this kind. We certainly do not imply that our courts should be accessories after the fact to disorderly practices of individual parents or others who thus seek to avoid the normal processes of justice by ex parte determination of what they happen to consider a more propitious form. A review of the decisions bearing on the subject shows the impracticability of trying to formulate rules in other than the most general terms. * * * ”
Knollhoff v. Norris, 152 Tex. 231, 256 S.W.2d 79 was a venue case. All parties were domiciled in the State of Texas. Of course any court anywhere at any time has the authority as well as the obligation to protect children against possible harm when jurisdiction has been invoked.
In Worden v. Worden, 148 Tex. 356, 224 S.W.2d 187, a case involving the question of jurisdiction under somewhat similar facts we said:
“ * * * Whether our courts have and will exercise jurisdiction depends in part upon domicile and also upon broader considerations, including among other things the physical presence before the court of the child and the contesting parties, and the general situation affecting the ability of the court to form an intelligent judgment on what will be best for the child’s welfare. Here the facts show that the child and both parents were before the court; the husband is still a Texas domiciliary; most of the relevants facts occurred in Dallas, where the domicile of all of the parties had been until only a few months before the trial, and apparently all important witnesses actually were present and testified. Under these facts we think that the Texas *108court was in a better position to pass intelligently on the matter of the child’s welfare than the courts of Virginia, and therefore that the Texas court had jurisdiction to award custody.”
The converse of that should be true, namely, that if the courts of Maryland are in better position to pass intelligently on the matter of changed conditions, then the Texas court should not exercise jurisdiction. If there had been any material change in conditions which would affect the welfare of these children, it would seem that the courts of Maryland should certainly be in better position to pass upon that question than the Texas courts.
The court’s opinion in this case recites that “the question now before us is which court has the jurisdiction to determine the right to possession of the children on habeas corpus”. Undoubtedly the Van Zandt District Court had jurisdiction to determine that very question. It was for that purpose that Mrs. Autry filed her application for writ of habeas corpus, but that is the question the district court refused to decide pending the trial of Autry’s claim for custody based on changed conditions, and the district court will naturally follow that procedure upon the granting of this writ of mandamus.
What we now have is that despite the award of custody by the Maryland court to Mrs. Autry, possession and custody will be continued in the father until such time as the district court tries this case and enters a final judgment. If Mrs. Autry is successful, she will have to await the outcome of an appeal to the Court of Civil Appeals and then a petition for writ of error. Not even then will she necessarily obtain possession or custody, for again she may be confronted by a petition alleging changed conditions which will give the district court jurisdiction again to hear evidence and try out the case and so on ad infinitum. To enable Mrs. Autry to withstand these frustrating experiences and bear the expense of traveling back and forth from Maryland to Texas, maintaining herself, and paying the lawyer’s fees and court costs, she would have to be possessed of some means and considerable determination.
This matter of abduction of children by one parent from another rightfully in possession, or even wrongfully for that matter, and carrying them into a distant state, happens all too often. Not only is it contrary to good order but is fraught with serious consequences to the mental well-being of the children. The courts should rather encourage the use of legal processes than to reward one who takes the law into his own hands. In my opinion the relator has not shown himself entitled as a matter of equity to the issuance of this writ.
While the action of the Court of Civil Appeals may have been erroneous it is not so clear to me that it exceeded its jurisdiction. In affirming the judgment of the dismissal of Autry’s suit by reason of the pendency of Mrs. Autry’s suit in Maryland, it inferentially held that Mrs. Autry was entitled to possession and temporary custody of the children. The order of that court complained of here actually sought to accomplish no more than to have the possession of the children placed in the hands of Mrs. Autry. That order reads as follows :
“Mandamus is granted and respondent, Judge of the 86th District Court of Texas, is hereby directed to forthwith issue his order remanding the custody of the five children involved herein to the relator, and it is so ordered.”
The order did not deny the right of the district court to try the asserted cross-action on its merits pending the disposition of the cross-action. It may also be construed as directing the relator, Judge, to proceed to hear the writ of habeas corpus apart from the cross-action and enter the only order that the court could reasonably have entered, since the judgment in the Maryland *109case had become final. Arts. 1823 and 1824, Vernon’s Annotated Civil Statutes.
I would deny the writ of mandamus.
NORVELL and STEAKLEY, JJ., join in this dissent.. The El Paso opinion, 359 S.W.2d 272, 276, recites that relator, Judge Crofts, admitted in his answer that the Maryland court did award custody of the children to Mrs. Autry on that date. Additionally there is attached to respondent’s brief what purports to be a photostatie copy of this decree of the Circuit Court for Montgomery County, Maryland, certified by the clerk of that court to be a full, true and correct copy from the record of proceedings ⅛ that court.