¶1(dissenting).
¶2It is with some hesitancy and reluctance that I dissent in this case, because the inherent justice of appellee’s position and the result reached by the majority is manifest. However, because of the importance of the legal-questions involved, and because I am not in accord with the views expressed by the majority, "fools rush in where angels fear to tread" and these views are recorded for what they are worth.
¶3Appellants, I think with some reason, do not concede that the custody of the child is not involved in this case. An examination of the application for the writ of habeas corpus in Finney v. Walker, Tex.Civ.App., 144 S.W. 679, discloses that there is no material difference in the relief sought in that case and the one at bar. There the' father was entitled to the custody of the child, not only because he was the surviving parent and natural guardian, but also because he was the duly appointed and qualified guardian of the person and estate of the child, yet the court treated the case as a child custody case. It may be that there is no valid distinction between a suit for possession and a suit for custody of a minor child. However this may be, the only legal question here presented is whether appellants who by means of the writ of ■habeas corpus unquestionably have been deprived of the possession and custody of the child, have been sued within the purview of the venue statute. Art. 1995, R.C.S., Vernon’s Ann.Civ.St. art. 1995, which provides :
“No person who is an inhabitant of this State shall be sued out of the county in which he has his domicile except in the following cases …
¶4By claiming the benefit of exceptions 9 and 30, appellee impliedly admits that appellants have been sued within the meaning of the statute, otherwise there would be no necessity for attempting to maintain venue in Pecos County because of the exceptions.
¶5It has been said that
“Strictly speaking, it [a writ of habe-as corpus] is not an action or suit, but is a summary remedy open to the person detained, although in some cases, or for some purposes, it is held to be an action or suit." 39 C.J.S., Habeas Corpus, § 1, p. 425.
¶6The same statement is made in 29 C.J., p. 7, and in footnote 11 in support thereof is cited In re Barry, 42 F. 113, 136 U.S. 597, 34 L.Ed. 503, note; and McFarland v. Johnson, 27 Tex. 105; and as contra, Finney v. Walker, Tex.Civ.App., 144 S.W. 679, under a statute regulating place of trial.
¶7That a writ of habeas corpus proceeding is a suit was held in Goetz v. Black, 256 Mich. 564, 240 N.W. 94, 84 A.L.R. 802, quoting C. J. Taney in Holmes v. Jennison, 14 Pet. (U.S.) 540, 10 L.Ed. 579.
¶8Certainly the application for and the issuance and return of a writ of habeas corpus invokes the judicial function of the court, it invokes it to obtain relief from the parties by whom the illegal restraint is alleged If the person having the possession of a minor who is deprived of such possession by such process is not sued, it is difficult to designate a name for the judicial process employed. In any event, the 'writ of habeas corpus is certainly a proper proceeding to secure such relief where the possession of a minor is sought. If, as said by Judge Betts in Barry v. Marcein, 5 How. (U.S.) 103, quoted in McFarland v. Johnson, supra
“A procedure by 'habeas corpus can in no legal sense be regarded as a suit or controversy between private parties”
¶9and as said in State v. Cheeseman, 2 Southard 445, 5 N.J.L. 445, also quoted in McFarland v. Johnson
“It is for the relief of the prisoner and the prisoner only. It is to inquire why the liberty of the citizen is restrained,”
¶10it 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 and 'he named appellants as the persons *438who had possession of the child and were illegally restraining her and he sought to have the child delivered to the court and to have her possession delivered to him. The fact that the application did not ask that appellants be required to deliver the child and the writ did not require them to do so, it seems to me is immaterial. The proceeding considered in its entirety clearly contemplated that by it the possession of the child should be taken from appellants, which was done, and they were in every legal sense adverse parties. Whether the proceeding be regarded as a civil suit or a mere summary proceeding, it seems to me by it appellants have been sued within the meaning of the venue statute.
¶11Clearly the facts of this case -do not bring it within any exceptions to the statute. The exception contained in Section 9 is applicable only where the crime or trespass is committed in the county where venue is sought to be maintained. Here, if any crime or trespass was committed by appellants it was committed in Lubbock County, where they took possession of the child, or in Lamb County, where they refused to deliver her to appellee. The basis of the decision in Lloyd v. Smith, Tex.Civ.App., 203 S.W.2d 793, 794 (no writ history) strongly relied on by appellee is the wrongful taking of the child and trespass in Dallas County. This is apparent from the following language of the opinion:
“ … it is obvious that the basis of these proceedings was the willful wrong and, to say the least, flagrant trespass committed by respondents on the right and privilege of relator to the care and custody of his children. So far as disclosed by the record, respondents, without the knowledge or consent of relator, or pretense of legal right, took possession of his minor children, removed them from their domicile and the domicile of their father, as well, into another county, and were illegally restraining them at the time the writ of habeas corpus was sued out.”
¶12The court unquestionably not only had the power but it was his duty to make some provision for the temporary care of the child pending his ruling on appellants’ plea of privilege and his disposition of the writ of habeas corpus, should he overrule the plea. This he did by his order of December 17, 1951. Appellants did not commit any crime or trespass when they took possession of the child under this order.
¶13I fail to see any application of Section-30 of the venue statute to the facts of this case. This section provides:
“30. Special venue. — Whenever in any law authorizing or regulating any particular character of action, the venue is expressly prescribed, the suit shall be commenced in the county to which jurisdiction may be so expressly given.”
¶14The special venue statute on which appel-lee relies is Section 2 of Art. 4111, V.A. G.S.:
“A proceeding for the appointment of a guardian shall be begun: …
“2. For the person and estate (or of either) of a minor, in the county where the surviving parent resides, if only one is living, or in the county where the last surviving parent of such minor resided at the time of the death of such parent, if both parents are dead, or in the county where such minor is found, or in the county where the principal estate of such minor may be.”
¶15This is not a proceeding for the appointment of a guardian for the minor. While this statute was cited in Lloyd v. Smith, supra [Tex.Civ.App., 203 S.W.2d 795] in. the following language
“If the respondents desire to challenge the right or fitness of relator to the care and custody of his children, they may do so in a legal manner by proceeding in a court of proper jurisdiction in Dallas County, the domicile of relator, as provided in Sec. 2 of Art. 4111, R.C.S., Vernon’s Ann.Civ. St. art. 4111, subd. 2.”
¶16the basis for the decision that venue was. in Dallas County was as indicated because a trespass was committed there.
¶17By his counterpoint 3, appellee contends that if any question of the custody of the child was involved in this suit the exclusive (emphasis ours) venue thereof was in* *439Pecos County, the legal domicile of the father and the child under the special venue statute. Apart from the specific language of the statute which confers venue “in the county where such minor is found” the Supreme Court has recently indicated that courts may determine custody where the child is present though not domiciled, as well as where the child is domiciled though not present. Ex parte Birmingham, Tex., 244 S.W.2d 977. This, of course, refers to jurisdiction and not to venue.
¶18I realize that the views herein expressed would permit a kidnapper who is an inhabitant of this State to reap the benefit ■of the venue statute. If this results in an absurdity, the remedy is with the Legislature and not by judicial legislation of the courts.
¶19I respectfully dissent.