Hays v. Brandon , 1951 Tex. App. LEXIS 1896 ( 1951 )

On Motion for Rehearing

.Appellants in their motion for rehearing suggest this Court erred while dismissing this cause in the following particulars :

That this Court should not have considered the extrinsic testimony set out in ap-pellee’s affidavit upon the substance of which our order of dismissal is based.

That appellee has failed to make financial arrangements with appellants to return the child to Texas according to the provisions of the trial court’s judgment.

That appellee is not currently financially supporting said child.

That this Court imposed upon appellants a burden not supported by law, when it held that they had ten days in which to produce the child before appellee’s motion was heard by this Court.

Nowhere in appellants’ motion or in their reply to appellee’s motion to dismiss do they deny they are holding the child in violation of the provisions set out in the trial court’s judgment. Neither do- they intimate they intend to obey said provisions of the trial court’s judgment by returning said child into its jurisdiction. Appellants base their defense for holding said child, in disobedience to the trial court’s judgment, upon the above legal technicalities.

This Court does not feel disposed to proceed with appellants’ contentions raised in their appeal under such adverse action. Appellee is not legally liable for the support of said child, under the trial court’s judgment, while appellants are unlawfully keeping him.

We would lend a more attentive ear to appellants’ contentions if they had showed a favorable disposition to return said child to Texas in the event appellee sent them the money to pay for his transportation. But the contrary is evidenced in their motion.

Since there is no disposition of appellants shown in their motion to comply with the trial court’s judgment, this Court will not disturb its former order of dismissal.

Inasmuch as we have made no change in our former order of dismissal, it will not be necessary for either party to file additional motions.