¶1joined by Justice Smedley, dissenting.
¶2I respectfully dissent from the answer of the court to Certified Questions No. 1 and 2. Here we hold that “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.” This case climaxes a series of cases which together render impotent, in so far as children are concerned, the constitutional writ of habeas corpus. Liberty can be lost by frustration of the remedies securing, it just as in other ways. Our valuable constitutional guarantee of a remedy to make certain the liberty of the citizen —the writ of habeas corpus — should not be debased to the status of a mere citation.
¶3Section 12, Art. 1 of the Texas Constitution quite plainly intended to establish by habeas corpus a summary process for quick relief from unlawful restraint. The Constitution’s language will take no other construction:
¶4“The writ of habeas corpus is a writ of right, and shall never *239be suspended. The Legislature shall enact laws to render the remedy speedy and effectual.”
¶5This command to keep the remedy of habeas corpus speedy and effectual is violated by the decision at bar because the right to file a plea of privilege (accompanied by an appeal) in response to the writ takes any possibility of speed out of the writ and thus renders it ineffectual.
¶6I agree with Judge Sutton who states:
¶7“… It certainly would be a novel absurdity if anyone, more especially a stranger, could deprive a small child of its domicile and a parent of its lawful possession and rob the writ of habeas corpus of one of its most important functions — speedy relief from illegal restraint — by the simple expedient of filing a formal plea of privilege when no legal right or interest is asserted or can be, and compel the child and parent to defend the domicile and custody in a distant forum. …”
¶8This writ of habeas corpus has been called “the birthright of the citizen” (Yates v. The People, 6 Johnson’s Reports, N. Y. 337, at p. 405) and it should remain uncomplicated and summary. It is the foundation rock upon which the liberty of the citizen is bottomed. The better practice in custody suits would be — and I think should have been from the first — to initiate the suit by petition and citation and use the writ of habeas corpus as an extraordinary ancillary remedy where there is need that the child be produced immediately in court. Were this established as standard procedure, as this court has the power to do, problems of custody would be litigated by petition and answer and the writ of habeas corpus would remain a special means of producing a child in court.
¶9At early common law the forms of action developed from the writs. Yates v. The People, supra; Plucknett, A Concise History of the Common Law. Thus a litigant’s substantive rights were necessarily determined by the choice of remedy available. In Texas the common law forms of action were never adopted and a litigant’s substantive rights in an adversary proceeding are now and have always been determined from the pleadings. The substantive rights of the parties are not measured and determined by a particular writ. The writ is traditionally the process by which the trial court takes action. It is a command. Therefore we should look first to the pleadings to determine the issue.
¶10*240Here the pleadings make no issue on the right to custody. The only pleadings filed by the appellants, Knollhoffs, was a plea of privilege in which they neither denied the father’s right to custody nor alleged facts negativing the father’s right of custody. Under our practice perhaps they could not expand the plea beyond the allegations specified in the venue statute. In his controverting affidavit the father plead:
¶11“This suit is not a suit for the custody of said minor child because such custody is vested absolutely in plaintiff as a matter of law, and the defendants have not sought in any way to secure her custody by process of law, but are simply illegally restraining her of her liberty in Lamb County, Texas, and hence that the usual rule of venue requiring a person to be sued in the county of his residence does not apply, …
¶12Where, from the face of the father’s pleading considered along with his controverting affidavit, the matter should not be subject to a change of venue, it is not a “suit” within the meaning of Art. 1995, R.C.S. The Knollhoffs might have proven at the venue hearing facts showing that the relief sought in the father’s pleading was not the true issue and that the true issue would be entirely different. They could have offered proof that the father was not entitled to custody. Failing in this, it is only right that the child be placed in the possession of the lawful custodian. Then the Knollhoffs could file a custody suit if they wished to prove, say, changed conditions. This would be a civil suit for custody. Herrington v. McDonald, 141 Texas 441, 174 S.W. 2d 307. This they did not do.
¶13The only proof offered was a stipulation of fact which does not challenge the father’s right to custody or support any right in the Knollhoffs. That being true, the relief sought is for the child to be produced in court and delivered to its unchallenged custodian. A habeas corpus to enforce an unchallenged custody should not be an adversary proceeding and should not be a suit within the meaning of the word “sued” as used in Art. 1995 R.S. 1925. Where one adult challenges another’s right to the custody of a minor, the proceeding is adversary and under our practice is a civil suit however initiated.
¶14In Quick v. Lindsay, 208 S.W. 2d 910, it was recognized that a .cause of action to change an established custody is different from a proceeding by habeas corpus to enforce an already established custody. The court said:
¶15*241“… The parties are disagreed as to the nature of this proceeding. It is the position of defendants that this is a suit concerning the custody of two children, born of the former marriage between plaintiff, Albert H. Lindsay, and one of the defendants, Dorothy Lindsay Pressler. The position of plaintiff is that this is a proceeding instituted by plaintiff to enforce his lawful custody of said children.”
¶16The court went on to hold that since the applicant for habeas corpus had alleged facts showing changed conditions occurring after a previous adjudication of custody the suit was in fact “to relitigate and readjudicate custody of children under allegations of a change in conditions” and as such was a new and independent suit subject to plea of privilege. The court recognized that there might be a proceeding to enforce custodial rights which would not put in issue the original adjudication of custody. The court said:
¶17“… Hence, if those who were vested by a final judgment with custodial rights, found that their effective exercise of those rights were interfered with by an abuse of the rights of visitation, a proceeding to correct such abuse, and to vindicate the right to exercise of custodial rights awarded by the court’s judgment, cannot be classified by the law for any purpose as a new and independent suit. Such a suit does not seek any change in custodial rights.”
¶18The mother’s custody automatically ceasing upon her death, it was transferred by operation of law to the father without the need of adjudication. The State stands in loco parentis to all children. It relies upon the parents, who have the primary duty, to take care of and protect children, and in the absence of a showing of unfitness, the law upon the death of one parent fixes the custody of their children in the other. Peacock v. Bradshaw, 145 Texas 68, 194 S.W. 2d 551-555.
¶19The allegations in the application for habeas corpus at bar that custody originally adjudicated to the mother vested upon the mother’s death by law in the father are not allegations of changed conditions requiring a readjudication of the question of custody. Therefore, this is not a suit alleging changed conditions and for that reason is not within such case's as Black v. Black, 2 S.W. 2d 331, O’Quinn v. O’Quinn, 57 S.W. 2d 397; and Green v. Spell, 191 S.W. 2d 92, wr. er. ref., Per Curiam, 144 Texas 535, 192 S.W. 2d 260.
¶20*242The court’s primary duty is to the child. When a child comes before the court, the court always has the burden of delivering a helpless child of five years to a fit person. Subject to that, the court had the duty to place the child in the possession of its legal custodian. The majority advance the argument that the only way to prevent the court’s delivering a helpless child to a drunkard or insane person (upon whom custody may have devolved by law) is by making each appearance of a child before a district court a custody trial. This ignores the general equity jurisdiction of a district court over minors. In establishing the framework of our legal system we must proceed upon the assumption that a district judge is a man of judgment and common sense who will use it. The language in the Civil Appeals case of Hardy v. McCulloch, 286 S.W. 629, does not support the conclusion that a district judge cannot on his own refuse to deliver a child to an unfit custodian, and if it did support such a construction it would clearly be wrong.
¶21The North Carolina Supreme Court in the case of McEachern v. McEachern, 210 N.C. 98, 185 S.E. 684, held (possibly dicta) that because a habeas corpus is “a high prerogative writ” and because it can be issued by one district court and made returnable to another, it was not subject to the equivalent of our plea of privilege to change venue. The court said:
¶22“What is the proper venue for the hearing on a writ of habeas corpus ?
¶23“The statutes as to venue, C.S. Sec. 463, et seq., all refer to ‘actions’ and have no reference to proceedings of this kind. The writ of habeas corpus has been denominated a ‘high prerogative writ.’ Its suspension is prohibited by the Constitution of North Carolina, Art. 1, Sec. 21.”
¶24Under the pleadings in this case the Knollhoffs were not adverse parties. The demand made upon them was to produce the child in court. I agree with Judge Sutton when he says:
¶25“… Norris did not seek the writ to determine the custody of the child. He already had it. His sole purpose was to relieve the child of the illegal restraint. When relieved of that restraint he, of course, obtained possession of her, and that was a primary object of the proceedings, it must be conceded. The action of Norris was in defense and preservation of his custody and not to fix it. …”
¶26I would answer Question No. 1 that a habeas corpus for *243possession only and to enforce an existing and unchallenged custody is not within the purview of the venue statute. I would answer Question No. 2 that the Knollhoffs were not adverse parties.
¶27Rehearing overruled April 8, 1953.
¶28Opinion delivered February 25, 1953.