Johnson v. Galloway , 1955 Tex. App. LEXIS 2532 ( 1955 )

PER CURIAM.

This appeal is from an order overruling appellants’ plea of privilege.

Ón June '6, 1952, in a cause styled Ray Dell Galloway v. Maude Galloway the District Court of Travis County, 126th' Judicial District, rendered judgment dissolving the marriage relations between those parties and awarded the custody of their minor child Gloria Dell Galloway to appellees Odessa and Mattie Galloway who are the paternal grandparents. This judgment gave the parents the right of reasonable visitation with the minor.

Subsequent to the above divorce judgment Maude Galloway married Nolan Johnson and at the time this proceeding was filed they resided in Harris County.

On or about July 4, 1954, appellees, so it was alleged in their pleading filed July 16, 1954, allowed Gloria Dell Galloway who was then about six years of age, to visit appellants in Harris County on the representation of Maude Galloway Johnson that the minor would be returned to appellees after a short visit in Harris County. Maude Galloway Johnson refused to return the minor and threatened to file suit in Harris County for her custody and appellees prayed for an order commanding Maude Galloway Johnson to appear and show cause why the minor should not be returned to their custody, that the custody he so returned and that Maude Galloway Johnson be restrained and enjoined from filing any suit outside of Travis County concerning the custody of said minor.

Maude Galloway Johnson joined by her husband filed her plea of privilege and prayed that the cause be transferred to Harris County. 'Appellees answered the plea of privilege by a special exception and controverting affidavits. On July 26, 1954, the trial court rendered judgment sustaining the special exception and striking and overruling appellants’ plea of privilege. Appellants have appealed from this order.

After- sustaining appellees’ special exception ■ and on thé same day the trial court rendered judgment ordering and directing Maude Galloway Johnson to immediately deliver the minor to appellees at their home in Travis County and ordering the attorney to notify her of the order.

We assume the above order was not immediately complied with and that the minor was not then present in court because on July 28, 1954, appellees filed their “complaint and application for attachment.” On the same day the trial court heard the application and issued the orders therein prayed for.

On November 10, 1954, and at a subsequent term of court, on appellees’ application, the trial court granted a nonsuit and dismissed appellees’ application which had been filed Jtily 16, 1954.

As we have noted this appeal is from the orders of the trial court relative to the plea of privilege. There is no appeal from any other order.

There is no statement of facts.

Appellees have filed their motion seeking to dismiss this appeal. This motion is granted.

In our opinion the application filed by appellees July 16,1954, except in so much as seeks to enjoin appellants from filing -a custody suit in Harris County was not a suit but merely a request that the court enforce its judgment of June 6, 1952, an ancillary proceeding. The court rendering judgment has exclusive jurisdiction for this purpose. Hunt v. Boyd, Tex.Civ.App. Austin, 193 S.W.2d 970. Hence the plea of privilege was properly striken as to this phase of the application.

The so-called judgment of July 26,-1954, merely ordered appellant Maude Galloway to return the minor. It did not mention any injunction and it was not, in our opinion, a judgment or order from which an appeal could be taken.

The application of appellants seeking an injunction was dismissed November 10, 1954. The effect,of this dismissal was-, to render moot the appeal from the order overruling the plea of'privilege 'as to the injunctive phase of the "case, since a court has no authority to determine the venue of' a nonexistent suit. McNeill v. Hubert, 119 Tex. 18, 23 S.W.2d 331, Comm. of App. opinion adopted, Gladden v. Thurmond, Tex.Civ.App.San Antonio, 77 S.W.2d 703.

Appeal dismissed.