Pickett v. Bush , 106 S.W.2d 845 ( 1937 )

Warren Gaston, a small child and the son of respondent R. C. Gaston, was declared, by the former judge of the court of said Sixty-Eighth judicial district, a dependent and neglected child, on October 13, 1933, under proper proceedings in said court. The order entered is: "It is therefore ordered, adjudged and decreed by the court that said Warren Gaston be, and he is hereby declared a dependent and neglected child, and is a ward of this court and subject to its further orders until he reaches the age of 21 years, and the above ward is hereby placed in the care and custody of Miss Blanche Pickett, maternal great aunt, 4808 Cole Avenue, Dallas, Texas, until further orders of this court." This order is signed by the Honorable T. A. Work, then judge of said court.

The child remained, at least in the constructive, if not in the actual, possession of Miss Pickett, and her possession was undisturbed, until about March 30, 1937, when the father of the child filed a petition in said district court, praying that he, as father of the child and its natural guardian, be given custody and control. At this time the child was in the home of relatives, by the name of Arthur Beasley and Mrs. Bama Beasley, at their home in Callahan county, Tex. It appears that this residence in Callahan county by the child was occasioned by its visit to the Beasley home, while Miss Pickett was in a sanitarium at San Angelo, Tex., probably suffering from tuberculosis, and she was not made a party to the suit filed by R. C. Gaston, or served with notice thereof. A trial was had on this petition, with Mr. and Mrs. Beasley in court, and Miss Pickett not represented and presumably unable to attend. The case was tried, evidence given, and, at the conclusion of the evidence, respondent Judge Paine L. Bush entered a temporary order placing the custody of the child, after April 15, 1937, with respondent R. C. Gaston, until Miss Pickett was able to come to court and present her claim to the continued custody of the child.

A petition was filed by Miss Pickett, praying that this court issue a mandamus, directing the court to set aside the order awarding R. C. Gaston temporary custody of the child, on the ground that, as against her, such order is void, for the reason that the court never obtained jurisdiction of her person, and to order the court to proceed to trial on the issues made by the petition after service on Miss Pickett.

The proceeding for mandamus is brought under the provisions of article 1824, R.C.S., as amended by Acts 1929, c. 33, § 1 (Vernon's Ann.Civ.St. art. 1824), which reads: "Said Courts [Courts of Civil Appeals] or any Judge thereof, in vacation, may issue the writ of Mandamus to compel a Judge of the District or County Court to proceed to trial and judgment in a cause, returnable as the nature of the case may require."

It will be noted that the right of mandamus, under this statute, is necessarily based upon a refusal of a court to try a pending case. We do not doubt, if the court by this order had disabled itself from trying this case as between Gaston and Miss Pickett, and that such order is void, this court would have the right to issue the writ prayed for. However, instead of the court disabling itself by the instant order, the order provides for the trial of the case as soon as Miss Pickett is able to attend court, and as soon as the cause could be tried in obedience to a writ of mandamus.

By the first judgment entered in October, 1933, this child was made a ward of the Sixty-Eighth judicial district court, and the best interest of the child, its future custody, and all things pertaining to its welfare, became vested in said court. This custody carries with it a broad discretion of the judge of said court, in passing upon any matter concerning the welfare of the child. While the judgment is not binding on Miss Pickett, yet she is given the right to have it set aside at any time. The wisdom of the order or whether it is for the best interest of the child is not before this court on the mandamus proceeding, but can only be brought before this court by an appeal from a final judgment.

We therefore conclude that the petition for writ of mandamus must be denied, and it is so ordered.