joined by Justice Walker dissenting.
The record now before us shows that Imagene Lillard had dismissed her suit against Lee Lillard in Dallas County before filing her suit against Mr. and Mrs. Lee Lillard in Tarrant County on February 26, 1957. It therefore appears that at the time of the hearing in the District Court of Tarrant County on May 24, 1957, and at the time of the entry of judgment therein on June 7, 1957, there was no suit then pending in Dallas County between the same parties involving the same subject matter.
*28Mr. and Mrs. Lee Lillard had physical possession of the tninor in Tarrant County. The suit filed by Imagene Lillard in Tarrant County was the proper method and the Tarrant County District Court was the proper forum for adjudicating all issues of custody and possession of the minor as between Imagene Lillard and Mr. and Mrs. Lee Lillard. Knollhoff v. Norris, 152 Texas 231, 256 S.W. 2d 79.
The fact that there was then pending in Dallas County a suit between Imagene Lillard and her former husband, John S. Lillard, in which the District Court of Dallas County had jurisdiction to determine rights of custody as between those parties, in no way militated against the jurisdiction of the Tarrant County District Court to determine similar questions between Imagene Lillard and Mr. and Mrs. Lee Lillard.
It is my opinion that the judgment of the District Court of Tarrant County awarding custody of the minor child to Imagene Lillard as against any claim of right to possession or custody of such child by Lee Lillard was a valid judgment and that in violating that judgment by removing the child from the custody and possession of Imagene Lillard, Lee Lillard was in contempt of the judgment of the court. He should be remanded to the custody of the sheriff of Tarrant County for his contempt.
Inasmuch as the majority have ordered the release of Lee Lillard, I express no opinion as to whether his punishment could exceed a fine of $100 and confinement in the County jail for a period of three days.
Opinion delivered July 23, 1958.