Ex Parte Ellerd

PRENDERGAST, Judge. This is a writ of habeas corpus from a judgment of the District Court of Hale County, fining the applicant for contempt. The writ was granted in vacation by one of the judges of this court largely because the fine for contempt was for $250. The record shows that prior to April 23, 1909, the applicant, Ellerd, sued his wife, Buth, for divorce in the District Court of Hale County, Texas, also setting up therein that there were two children by the marriage, a boy then five years of age, and a girl, then about three years old, and that his mother, Mrs. Lucinda Ellerd, was a proper person to care for said children, praying for a divorce and that the care and cus- ^ tody of said children be given to his mother; that on said date he was granted a divorce, and certain property was partitioned between them. As to the children, the judgment of the court in the divorce suit in response to appellant’s allegations and prayer, is as follows: “It further appearing to the court that the parties hereto have in open court agreed, and it is therefore ordered and decreed by the court that the two minor children of plaintiff and defendant, towit, Truman Ellerd, a boy of about five years of age, and Hina Belle Ellerd, a girl of about three years of age, be and is placed and decreed in the custody of Mrs.-Lucinda Ellerd of Hale County, Texas, who shall not later than the 1st of September, 1909, bring said children to the town of Plain-view, in said county, and keep them in Hale County as their permanent place of residence, and that the defendant shall have the right to visit said children and administer to their needs at all reasonable and seasonable times, five days prior notice of such visits having been first given to Mrs. Lucinda Ellerd, without any hindrance whatever, and neither the plaintiff nor the defendant shall have the right to remove said children or either of them out of the jurisdiction of this court without the consent of the court or the agreement of the parties.” *287 This judgment was in full force and effect when this contempt proceeding was begun; about August 9, 1912, said divorced wife of applicant, Buth Ellerd, filed her motion in the said District Court of Hale County, setting up the said divorce judgment and the disposition of the children as shown by that portion of the order' copied above, and that on or about May 2G, 1912, she not having seen her children for many months, wrote them a letter from her home in Newcastle, Young County, Texas, addressing it in the care of Mrs. Lucinda Ellerd, notifying her, said Mrs. Ellerd, that she would soon visit her children at Plain-view, in Hale County; that on June 1, 19.12, she left her home and went to Plainview for the purpose of visiting her children, arriving there on June 2, 1912, and went to where Mrs. Lucinda Ellerd had been residing with her children, but found they were not there but that her former husband, the applicant herein, had had his father and' mother, after receiving said notice of her intended visit, take her children from Plain-view to the town of Texico, New Mexico, and had placed them then on the train and sent them to Cloud Croft, New Mexico, both of said places being beyond the jurisdiction of the court and in a foreign State; that her said former husband, knowing her visit at Plainview and the purpose of it, had failed and refused to cause her children to be returned to Plainview as he could have done; that his father and mother were old and infirm, subject to his control and entirely subservient to his wishes with respect to the custody, control and management of her children and their control and custody being in substance- and effect his control and custody, and that in violation of said divorce decree in the particulars above quoted, had procured and caused them to remain away from. Plainview beyond the jurisdiction of the court for more than sixty-seven days at that time, while she waited in vain for the opportunity to visit them in Plainview as she was entitled to do under the terms of said decree, and that by his action he was guilty of violating the terms of said decree and in contempt of the authority of said court. There was much else in this motion of prior violations by her former husband of said decree and that he had many times been in contempt of the court in violation thereof, but it is unnecessary to state any of these matters as they were not the basis of the court’s order in said contempt proceedings. The record further' shows due service upon the applicant and that he appeared with his attorr^ and duly answered her motion against him; that the court fully heard all of this matter between them, heard all the evidence and thereupon, and on June 26, 1912, made and entered in the minutes of said District Court an order to the following effect: “It is ordered, adjudged and decreed that the defendants, Beuben M. Ellerd, Mrs. Lucinda Ellerd and her husband, T. J. Ellerd, and each of them be and they are hereby required to produce before the District Court of Hale County, Texas, on the first day of the next ensuing term thereof, towit, the 5th day of August, 1912, at 10 o’clock a. m., the two said minor children, Truman Ellerd and Nina Belle Ellerd, mentioned *288 in plaintiff’s petition and them to have in said court from day to day and term to term until otherwise ordered by the court, and to observe and to perform such further order of the court as it may make from time to time with respect to said children and the custody thereof; and it is further ordered that the clerk of this court do issue notice of this order to said defendants.” That the clerk thereupon issued the proper writ with a copy of this last order therein, which was duly served upon the applicant. That in obedience to said order and notice the applicant did appear and answered the said motion, contesting the same in many particulars. Thereupon, the court again heard the parties, all the evidence introduced thereon and argument of counsel, and on August 10, 1912, entered a decree stating that the court was of the opinion that said Eeuben M. Ellerd, applicant, was guilty of contempt of the court in disobedience of said order of said court rendered and entered on April 23, 1909, and thereupon adjudged him guilty of contempt of the court as charged by the plaintiff in her said motion and fined him $250, and “It is therefore ordered, adjudged and decreed by the court that the State of Texas do have and recover of the defendant, Eeuben M. Ellerd, the said fine of $250 and all costs of this prosecution, and the said defendant, being present in court, is placed in the custody of the sheriff, who will forthwith commit him to jail until such fine and costs are paid, and said defendant, Eeuben M. Ellerd, is now in the custody of said sheriff and execution may» issue against the property of the defendant for the amount of such fine and costs.” Thereupon, the proper writ of commitment was issued to the sheriff of said county in accordance with said decree. The sheriff took charge of him in obedience thereto and was holding him in custody when he, on August 14, 1912, sued out the writ of habeas corpus herein. The record herein does not show’ this court what testimony was introduced in the District Court on the hearing and at the time the court made and entered the order fining the applicant for contempt. 3STo appeal was taken from the said order fining him for contempt, if that could be done. By his brief and the oral argument of his attorneys he attacks the said judgment of contempt on four grounds: (1) That the District Court of Hale County had no jurisdiction to fine him in any sum for contempt for doing the things for which he was fined; (2) that the said judgment of contempt was void because the motion nowhere states that his children were taken out of Plainview without the consent “of the parties,” claiming that the original -decree herein first above recited was indefinite and uncertain and does not inform him or anyone whose consent must be obtained in order to remove said children from Plainview; (3) that the said first order above recited was no such order or decree as would hold him in contempt for sending his mother and the children out of the State and the jurisdiction of the court for sixty-seven days; that this would be in effect an injunction when, as a matter of fact, it is a mere declaration of the rights of his father and mother in reference *289 to said children and gave them the right to exercise such control over them as mentioned therein and that Mrs. Ruth Ellerd, in effect, should have gone into a court of proper jurisdiction and sued out a writ of habeas corpus, or other process, and .(■!) that the District Court had no authority to fíne him éxceeding $100, and that the judgment fining him $250 was void. It will not be necessary to discuss the said three grounds, first set up, separately, but instead we will discuss them together. It is too well settled in this State to require any discussion to show that a District Court of this State had the power and authority to make the order as . to the custody and care of the children and.where they should be kept and that they should not be taken out of the jurisdiction of that court. The statute of this State, Revised Statutes, article 4641 (2987), expressly gave the District Court power to give the custody and education of the children to either the father or the mother as to the court shall seem right and proper. The Constitution of our State, also, section 5, article 8, as has been expressly held by our Supreme Court, gives to the District Court original jurisdiction and general control over minors. In Ex parte Reeves, 100 Texas, 617, our Supreme' Court expressly so held and in addition quoted and approved, on this point, section 1307, 3 Pomeroy’s Equity (3 ed.), as follows: "In addition to its power to appoint guardians, the court of equity will also exercise its jurisdiction, in a proper case, and to promote the highest welfare of the infant, where there is already a guardian, natural or legal, by controlling the person of the infant, and by removing it personally from the custody of its natural or legal guardian, even from the custody of its own parents.” And our Supreme Court has many times held that our District Courts bad the right and power, and it is universally practiced by the District Courts, to take the custody of the minor children from both parents and put them into the custody of another. Rice v. Rice, 21 Texas, 58. See also Jordan v. Jordan, 23 S. W. Rep., 531; Legate v. Legate, 87 Texas, 248, and authorities therein cited; Church on Habeas Corpus (2 ed.), see. 430: Hurd on Habeas Corpus, p. 462; 2 Bish. on Mar. & Div. (6th ed.j, secs. 528d, 536; Schouler on Dom. Rel., secs. 248-9. And that the District Court has the right by its order, as was done in this case, to permit either parent to have access to his child at reasonable times and in a reasonable manner, there can be no question. Church on Habeas Corpus (2 ed.), secs. 433 and 437c. And we think there is no question but that in this State the court can restrict the person in whose charge he places the child from removing it out of the jurisdiction of the court. Hurd on Habeas Corpus, p. 52. Especially is this the case when such decree is made by the agreement of all the parties at the time the custody of the child is awarded, and directs that it shall not be removed from the jurisdiction of the court. We can not agree with applicant’s contention that there is any uncertainty about the decree of the court as to what parties are to have notice *290 of the visit of the mother to the children, wherein it says that “the defendant (Mrs. Birth Ellerd) shall have the right to visit said children and administer to their needs at all reasonable and seasonable times, five days prior notice of such visits having been first given to Mrs. Lucinda Ellerd, without any hindrance whatever, and neither the plaintiff nor the defendant shall have the right to remove said children or either of them out of the jurisdiction of this court without the consent of the court or the agreement of the parties.” Evidently the agreement of the parties and the decree of the court clearly embrace both the father and the mother. As stated above, what the evidence was on the trial by the District Court when the fine for contempt was made and entered is not shown this court. The testimony before us when this habeas corpus trial was had did show that before said order of contempt was made and entered, the District Court heard all the evidence. On this collateral attack of said judgment we must presume and assume the evidence fully sustained Mrs. Ellerd’s allegations in her motion, and that all said evidence fully authorized, if it did not require, a judgment of contempt. Even if we take the testimony of the applicant, heard before us, it clearly would have authorized the District Court to have adjudged applicant guilty of contempt. It is shown from this testimony that at the time of the trial of said divorce case, when the decree placing said children in Mrs. Lucinda Ellerd’s custody was made, that she then lived in Hale County, seventeen miles from Plainview, the county seat of Hale County, and that she then at that time had said children in her custody. That by said decree she was required not later than September 1, 1909, to even bring them from said distance already in Hale County to Plainview, and there keep them as their permanent place of residence. That said Mrs. Ellerd complied with this part of said decree, and removed from her then home with said children, and acquired another home at Plainview. All this was for a specific purpose, as we plainly understand from said decree, which was that their mother shall there "have the right to visit said children and administer to their needs at all reasonable and seasonable times, five days’ prior notice of such visits having been first given to Mrs. L. Ellerd, without any hindrance whatever,” and not be required to go elsewhere to do so. The said testimony of the applicant before us unquestionably further shows that the mother of the children did give his mother this five days notice, and his mother not only so notified him but gave him said written notice and requested him to answer it, and he did so, by registered letter, telling her the children were going to be taken to Cloud Croft, Íí. M., and inviting her to visit them at Cloud Croft. Prior to the receipt of this notice from the children’s mother, while his mother and father had discussed going somewhere on a trip for his health, no time nor place had been fixed upon. But immediately after he sent this registered letter, and he knew before it was possible for their mother to reach Plainview, he took his father and mother and the children some eighty miles across the country *291 in liis automobile, and did not stop until he got them, not only out of Plainview and Hale County, but out of Texas. The presumption is strong that he did not take them on the railroad, fearing they might-meet up with their mother. The testimony would also authorize the finding that his removal of them was permanent from Hale County, and that he is to keep them out of the jurisdiction of the court. In addition the testimony is clear that he took these children away, and out of Texas, at this particular time so as to prevent, as it did, their mother from seeing and visiting them at the time she had notified his mother she would, in clear violation of said decree. As the District Court clearly had jurisdiction of the subject matter and of the person of the applicant before and at the time he heard Mrs. Ruth Ellerd’s motion and entered the judgment of contempt against applicant, and as we are not advised what the testimony before the court was at that time, every indulgence will be presumed in favor of the regularity and authority of the order so made by the District Court at the time, when such judgment is collaterally attacked as it is in this habeas corpus proceeding. The only other question necessary to be decided is whether or not the excessive fine entered against applicant renders the judgment absolutely void and subject to this collateral attack. It is clear that the District Court for contempt could not enter a fine exceeding $100. Revised Statutes, article 1708 (1101). There is no claim by the applicant that he has paid this fine or any part of it, or that he has paid the cost of the proceedings which was adjudged against him. So far as we have been able to find there is no case in this State directly passing upon this question. The applicant cites us to Ex parte Morgan, 48 Texas Crim. Rep., 108, 86 S. W. Rep., 755. The decision of that case does not directly decide this point and nothing is said thereabout other than the fact that in that case the relator was ordered discharged, because the fine for contempt therein was $300 and fifteen days confinement in the county jail, which was held to be for a past offense. A careful study of that case convinces us that the question was not raised, discussed, nor decided. So that we look to other authorities and principles for a correct decision of the question. In 15 A. & E. Ency. of Law (2 ed.), p. 171, the correct rule is laid down as follows: “In the case of a judgment or sentence which is merely excessive, it seems to be well settled that, if the court was one of general jurisdiction, such judgment or sentence is not void ab initio because of the excess, but that it is good so far as the power of the court extends, and is invalid only as to the excess, and therefore that a person in custody under such a sentence can not be discharged on habeas corpus until he has suffered or performed so much at it as it was within the power of the court to impose. This condition exists whenever the punishment imposed is of the nature or kind prescribed by law and merely exceeds the quantity authorized, as where the offender is sentenced to a longer term of imprisonment than is prescribed for the particular offense, or *292 where he is condemned to pay a fine and be imprisoned for an offense which is punishable by fine or imprisonment; or where the sentence is severable, and a part of it is of the nature prescribed by law and the other part is not, as where an offender is sentenced to imprisonment in the penitentiary and to pay a fine, when the punishment authorized by law for the particular offense is á fine and imprisonment in the county jail." To support this, many cases are cited in the note, by the United States Supreme Court, and of the States of California, Massachusetts, Missouri, Nebraska, New York, North Carolina, Ohio, South Carolina, Vermont, West Virginia and Wisconsin. It is true that the text both before and following the quotation we have given above in substance states that there are authorities holding that an excessive sentence is •invalid in toto and that a discharge on habeas corpus has been granted on that ground, but the cases in such sentences have been so declared on writs of error, or appeal. On .this subject Church on Habeas Corpus (2 ed.), page 529, while recognizing that some court’s hold such a judgment absolutely void, states: “The prevailing rule is that an excessive sentence is merely erroneous and voidable; that the whole sentence is not illegal and void because of the excess; that it is not void ab initio; and that it is good on habeas corpus so far as the power of the court extends, and invalid only as to the excess," citing many decisions to sustain this. The rule above announced is so reasonable, just and right and is so well supported by authority that we, therefore, hold that the said judgment, although excessive to the amount and sum of $150, is not void and the applicant is not entitled to a discharge until, and unless' he shows that he has paid the amount of $100 and all- costs, and he is, therefore, remanded to the custody of the sheriff of Hale County. Relator remanded to custody. '