Mr. Justice Calvert
delivered the opinion of the Court.
This is a child custody matter which reaches us by certified question.
Wallace Eugene Norris and Marian Norris, husband and wife, were divorced. The custody of a baby girl, Vera Lynn Norris, (now five years old) was awarded to Marian as the mother who thereafter died in Lubbock. The father lived in Pecos County. Immediately following the mother’s' death, a Mr. and Mrs. E. B. Knollhoff, whose relationship to the child is not apparent from the record, took the child from Lubbock to,their home in Sudan, Lamb County, Texasi
On November 5, 1951 the father, W. E. Morris, filed a plead-’ ing in the district court of Pecos County called an “application [233] for Writ of Habeas Corpus.”1 In response to this pleading the District Judge issued a writ addressed “To the sheriff or any Peace Officer of the State of Texas” and commanding that those addressed “forthwith take and bring the said Vera Lynn Norris before me at Fort Stockton, in Pecos County, Texas, to be dealt with according to law.” This process was executed by several officers (including a deputy sheriff of Lamb County) by seizing the child and, over the protests of the Knollhoffs, taking her to Pecos County and delivering her to the District Judge. The following day the Knollhoffs filed a plea of privilege to be sued in Lamb County and on the same day the Judge by order duly entered found that it would be for the best interest of the child that her temporary custody pending the hearing of the plea of privilege and final hearing of the case on its merits be placed with the Knollhoffs at Sudan, Texas, and ordered that temporary custody be awarded accordingly.
The trial court overruled the plea of privilege and the Knollhoffs appealed to the Court of Civil Appeals. On original submission opinions were filed by all three members of that court, the majority agreeing that the judgment of the trial court should be affirmed. 250 S.W. 2d 434.
[234] Associate Justice Sutton was of the opinion that the proceeding was not a custody suit between Norris and the Knollhoffs as adverse parties but was a summary proceeding for possession only to which the venue statutes did not apply. Chief Justice Price agreed with Justice Sutton but pointed out that the Knollhoffs were neither sued nor served with any form of citation and expressed the view that by their voluntary filing of a plea of privilege before process had been issued and before they were compelled by compulsory process to answer they had made an appearance in the case, requiring the overruling of the plea of privilege. Associate Justice McGill dissented on the ground that custody of the child was at issue, that the proceeding was a civil suit and that the venue statute (Art. 1995) provided in this type of case no exception from the general rule entitling the defendants to have the case tried in the county of their residence.
After, motion for rehearing was overruled the Court of Civil Appeals certified to us the following questions:
“Question No. 1. Under the facts as above stated, was the question of the custody and possession of the child, Vera Lynn Norris, involved in this case so as to be a civil action wherein Appellants have been sued within the purview of the Venue Statute, Article 1995?
“Question No; 2. Under the facts as above stated, were Appellants adverse parties to the application on which the writ was issued and under which they were deprived of the custody and possession of the minor child, Vera Lynn Norris, and were they sued within the purview of the Venue Statute?
“Question No. 3. Did Appellants, by appearing and filing their plea of privilege in this proceeding, no process having been served on them requiring them to appear therein, waive their privilege to be sued in Lamb County?”
We have concluded that the first two questions should be answered yes.
It is true that the legal custody of the child vested automatically in Norris when the child’s mother died, and it is undoubtedly true also that from that moment he was legally entitled to the physical possession of the child. But he did not have that possession. In order to obtain it he petitioned the district court, in the exercise of its constitutional jurisdicion of [235] general control over the minor and through its writ of habeas corpus, “to have the said Vera Lynn Norris forthwith brought before your Honor, at such place as your Honor may designate and deem proper, and that upon hearing, the possession of said minor child be delivered to your petitioner * * The writ issued by the court, though perhaps in form without authority of law, commanded the sheriff or other peace officer “to forthwith take and bring the said Vera Lynn Norris before me at Fort Stockton, in Pecos County, Texas, to be dealt with according to law.” It thus appears from the application for writ of habeas corpus filed by Norris that he invoked, and from the writ issued by the court that it took jurisdiction to deal with the person of the minor.
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Mr. Justice Calvert
delivered the opinion of the Court.
This is a child custody matter which reaches us by certified question.
Wallace Eugene Norris and Marian Norris, husband and wife, were divorced. The custody of a baby girl, Vera Lynn Norris, (now five years old) was awarded to Marian as the mother who thereafter died in Lubbock. The father lived in Pecos County. Immediately following the mother’s' death, a Mr. and Mrs. E. B. Knollhoff, whose relationship to the child is not apparent from the record, took the child from Lubbock to,their home in Sudan, Lamb County, Texasi
On November 5, 1951 the father, W. E. Morris, filed a plead-’ ing in the district court of Pecos County called an “application [233] for Writ of Habeas Corpus.”1 In response to this pleading the District Judge issued a writ addressed “To the sheriff or any Peace Officer of the State of Texas” and commanding that those addressed “forthwith take and bring the said Vera Lynn Norris before me at Fort Stockton, in Pecos County, Texas, to be dealt with according to law.” This process was executed by several officers (including a deputy sheriff of Lamb County) by seizing the child and, over the protests of the Knollhoffs, taking her to Pecos County and delivering her to the District Judge. The following day the Knollhoffs filed a plea of privilege to be sued in Lamb County and on the same day the Judge by order duly entered found that it would be for the best interest of the child that her temporary custody pending the hearing of the plea of privilege and final hearing of the case on its merits be placed with the Knollhoffs at Sudan, Texas, and ordered that temporary custody be awarded accordingly.
The trial court overruled the plea of privilege and the Knollhoffs appealed to the Court of Civil Appeals. On original submission opinions were filed by all three members of that court, the majority agreeing that the judgment of the trial court should be affirmed. 250 S.W. 2d 434.
[234] Associate Justice Sutton was of the opinion that the proceeding was not a custody suit between Norris and the Knollhoffs as adverse parties but was a summary proceeding for possession only to which the venue statutes did not apply. Chief Justice Price agreed with Justice Sutton but pointed out that the Knollhoffs were neither sued nor served with any form of citation and expressed the view that by their voluntary filing of a plea of privilege before process had been issued and before they were compelled by compulsory process to answer they had made an appearance in the case, requiring the overruling of the plea of privilege. Associate Justice McGill dissented on the ground that custody of the child was at issue, that the proceeding was a civil suit and that the venue statute (Art. 1995) provided in this type of case no exception from the general rule entitling the defendants to have the case tried in the county of their residence.
After, motion for rehearing was overruled the Court of Civil Appeals certified to us the following questions:
“Question No. 1. Under the facts as above stated, was the question of the custody and possession of the child, Vera Lynn Norris, involved in this case so as to be a civil action wherein Appellants have been sued within the purview of the Venue Statute, Article 1995?
“Question No; 2. Under the facts as above stated, were Appellants adverse parties to the application on which the writ was issued and under which they were deprived of the custody and possession of the minor child, Vera Lynn Norris, and were they sued within the purview of the Venue Statute?
“Question No. 3. Did Appellants, by appearing and filing their plea of privilege in this proceeding, no process having been served on them requiring them to appear therein, waive their privilege to be sued in Lamb County?”
We have concluded that the first two questions should be answered yes.
It is true that the legal custody of the child vested automatically in Norris when the child’s mother died, and it is undoubtedly true also that from that moment he was legally entitled to the physical possession of the child. But he did not have that possession. In order to obtain it he petitioned the district court, in the exercise of its constitutional jurisdicion of [235] general control over the minor and through its writ of habeas corpus, “to have the said Vera Lynn Norris forthwith brought before your Honor, at such place as your Honor may designate and deem proper, and that upon hearing, the possession of said minor child be delivered to your petitioner * * The writ issued by the court, though perhaps in form without authority of law, commanded the sheriff or other peace officer “to forthwith take and bring the said Vera Lynn Norris before me at Fort Stockton, in Pecos County, Texas, to be dealt with according to law.” It thus appears from the application for writ of habeas corpus filed by Norris that he invoked, and from the writ issued by the court that it took jurisdiction to deal with the person of the minor.
While it has been held that a court may not take jurisdiction to adjudicate the custody of a minor on its own motion, Hardy v. McCulloch, Tex. Civ. App., 286 S.W. 629, writ refused, it has also been held that a child becomes a ward of the court when it is brought before the court for any purpose. In re Badger, 286 Mo. 139, 226 S.W. 936, 14 A.L.R. 286; 27 Am. Jur. Infants, §105, p. 827; 43 CJS, Infants, §7, p. 56. One cannot invoke the jurisdiction of the court to deal with the personal status or the person of a child and at the same time deny the power of the court, in that proceeding, to do with the child’s person or his status whatever appears to the court to be for the best interest of the child. The petitioner having brought the child before the court could not by the nature of his pleading limit the constitutional jurisdiction of the court to deal in fullest measure with the child’s person or status. In other words, the proceeding to obtain physical possession of the child automatically invoked the power of the court to adjudicate custody, and was, therefore, a suit involving custody as well as possession. To hold otherwise might well lead to disastrous results. Suppose one having legal custody sued out a writ of habeas corpus for possession only and had the child brought before the court, whereupon it became obvious that the petitioner was a confirmed drunkard or of deranged mental faculties. Can it be thought that by the act of having the child taken from the possession of another and brought before the court the constitutional jurisdiction of the court would be exhausted and that the court could not deny the possession of the child to the petitioner and give its physical possession and its custody to another? Surely not. Neither our law nor our courts should be held to be so impotent. In the case of Green v. Green, Tex. Civ. App., 146 S.W. 567, writ dismissed, a wife filed a suit to enjoin her husband from removing their [236] children out of the state and asking that the order of restraint require the return of one child to her, which it accordingly did. The order was attacked on the ground that the nature of the pleading would not support a custody order, but the court said : “* * * a pleading which shows upon its face that the welfare of a minor child requires that an order be made by a district court or a judge thereof, is amply sufficient to warrant the court or such judge in making such order as in his discretion may appear right and proper for the welfare of the child.”
From what has been said it follows that this proceeding, although initiated by application for writ of habeas corpus and intended perhaps to determine possession only, nevertheless was one involving custody also and was a civil suit the same as all other proceedings to adjudicate custody initiated by application for writ of habeas corpus. Legate v. Legate, 87 Texas 248, 28 S.W. 281. That the trial court shared the views here expressed is attested by the fact that after a hearing it awarded temporary custody of the child to the Knollhoffs.
For largely the same reasons we also hold that the Knollhoffs were adverse parties to the proceedings and were sued within the purview of the venue statute. The application for the writ of habeas corpus recited that the Knollhoffs had the child illegally restrained of her liberty and continued: “E. B. Knollhoff and Margaret Knollhoff took possession of said minor child immediately after her mother’s death and have held such possession since then, and have repeatedly refused to deliver said minor child to your petitioner, though he has on several occasions requested and demanded of them that they do so.” This very recitation shows indisputably that Norris recognized that the Knollhoffs were denying his right to the possession or continued custody of the child and were asserting an adverse right thereto. Norris knew also that the only legal writ issuable upon his application was required to be issued to the Knollhoffs. (Arts. 113 and 114, Code of Criminal Procedure) commanding them to produce such child and show why she was held in custody or under restraint. He therefore knew that when so commanded the Knollhoffs would have the right to appear and contest his right to possession and continued custody of the child, with the ancillary right to file whatever pleadings they deemed appropriate, including the plea of privilege. This is merely the usual and customary manner of proceeding in any suit involving custody of a child begun by application for writ of habeas corpus. Lakey v. McCarroll, 134 Texas 191, 134 S.W. 2d 1016. As was [237] said, by Associate Justice McGill of the El Paso Court in his dissenting opinion; “* * * ^ may be noted that appellee in this' case did not purport to apply for the writ solely in behalf of the minor child to obtain her liberty. Appellee applied for the writ in his own behalf and for his own benefit * *
Our affirmative answer to questions 1 and 2 finds support in the case of Finney v. Walker, Tex. Civ. App., 144 S.W. 679, no writ history, which appears to be squarely in point on the facts. It finds support also in the language of the Court of Criminal Appeals in the case of Ex parte Reed, 34 Texas Crim. Rep. 9, 28 S.W. 689, in which a mother filed an application for writ of habeas corpus, alleging that her minor daughter was “held and illegally restrained of her liberty by one Eugene Burnett, who was in no way related to the child; but, that, as her mother, relator was entitled to the custody of the child * * The Court of Criminal Appeals held that it had no jurisdiction of the appeal in the matter because it was a civil proceeding but said: “We say it is a civil proceeding, for, though the theory of the writ in such a case is that it relieves from improper restraint, yet the true question in the proceeding is to determine what is for the best inter'est of the child, in whose custody it should be placed.” (Emphasis added)
It is contended that the views here expressed would lead to an unjust result in that they would require one already having legal custody and the right of possession of a child to relitigate those same issues in the county of residence of an interloper or even a kidnapper. In answer it may be said that the legislature simply has not written and probably cannot write the venue statute so as to eliminate all unjust results. It may be that it could add a beneficial exception to the general rule of venue to be applied in child custody proceedings but it has not done so and we have no power to add it.
It may be said that the views here expressed would reward him who violates the peace of the community and takes possession of the person of a child by force and would penalize him who seeks to enforce his right of possession by peaceful means in a resort to the courts. No doubt this is true; but, again, the result is not unique in this respect. In custody proceedings between separated but undivorced parents, or between divorced parents where award of custody was not made at the time of divorce, where each parent has equal right to custody, it is held that the defendant may insist on his privilege to be sued in the [238] county of his residence. O’Quinn v. O’Quinn, Tex. Civ. App., 57 S.W. 2d 397, no writ history; Isom v. White, Tex. Civ. App., 202 S.W. 2d 486, no writ history. The net result in these cases is that the parent who by force can compel the other to assume the role of plaintiff and bring the suit will be rewarded by being privileged to try the case in the county of his or her residence.
The third question certified should be answered no. The writ of habeas corpus, properly issued, would have commanded appellees to produce the child before the court, whereupon appellees would not have been volunteers in court. Their right to plead their privilege could not be defeated by an erroneous direction of the writ to the sheriff or any peace officer of the State of Texas. The manner in which the writ was issued and executed served all the purposes of a decree of temporary custody. One sued for custody of a minor from whom the minor is taken on an ex parte order of temporary custody cannot be required to await service of citation which, under the direction of a plaintiff, might never be served thereby permitting the temporary order to serve all the purposes of a final judgment, at the risk of waiving his venue privilege if he files a plea of privilege.
Opinion delivered February 25, 1953.