Austin v. Austin

• Decision Date: 12 December 1966
• Docket Number: No. 5--4074,5--4074
• Citation: 241 Ark. 634,409 S.W.2d 833
• Parties: Virginia AUSTIN, Appellant, v. Kenneth AUSTIN, Appellee.
• Court: Arkansas Supreme Court

Page 833

409 S.W.2d 833

241 Ark. 634

Virginia AUSTIN, Appellant, v. Kenneth AUSTIN, Appellee.

No. 5--4074.

Supreme Court of Arkansas.

Dec. 12, 1966.

Rehearing Denied Jan. 23, 1967.

James R. Hale and Charles W. Atkinson, Fayetteville, for appellant.

Putman, Davis & Bassett, Fayetteville, for appellee.

AMSLER, Justice.

This appeal involves an unusual factual situation and a unique legal question. Appellant Virginia Austin and appellee Kenneth Austin were husband and wife up to some date (not disclosed by the record) prior to August 19, 1964. On that date, in a suit by Virginia Austin against Kenneth Austin, the Superior Court of Los Angeles County, California, entered an order awarding custody of their three minor children to Kenneth Austin with visitation privileges to the mother. Virginia Austin apparently left California and established residence in Fayetteville, Arkansas, while appellee remained in California with his new wife and the children.

In 1965, Virginia, through some method, not revealed by the record, had the minor son, Wendell, with her in Fayetteville, Arkansas, and refused to relinquish custody to her former husband. On August 4, 1965, Kenneth Austin filed a petition for a writ of Habeas Corpus in the Circuit Court of Washington County, Arkansas, (Fayetteville) seeking to have Wendell returned to him. On the same day the Circuit Court, following a hearing, ordered Virginia to turn the child over to Kenneth and required the father to post one thousand dollars in cash to assure the appearance in court of the father and son (on two weeks notice) for further proceedings. Both parties and their attorneys were present at the hearing.

On the following day (August 5th) Virginia Austin filed a petition in this court (Case #5--3746) seeking a temporary stay of the Circuit Court order. On the same day this court 'stayed' the Circuit Court order, gave Virginia three days to file defense pleading to the petition for writ of Habeas Corpus in Washington County, directed that Wendell (the minor) be immediately returned to his mother and that the Circuit Court transfer the cause to the Chancery Court of Washington County and further 'The Washington Chancery Court as soon as possible will have a full hearing, make up a complete record in the case, and enter its considered order regarding the custody of Wendell Austin, a minor, with full right of review by this Court on the part of any dissatisfied party.' The order of this court was filed with the Circuit Clerk of Washington County on August 6, 1965.

On August 5, 1965, Kenneth Austin, after the minor was returned to his mother, made the following notation (by his attorney) on the record of the petition for writ of Habeas Corpus:

'Petitioner (Kenneth Austin) dismisses the above petition without prejudice and withdraws his appearance.

Kenneth Austin

/s/ by Sidney P. Davis, his attorney'

On the same day, according to the evidence, the Circuit Judge noted on his docket sheet 'Dismissed at request of plaintiff.'

On August 6, 1965, Virginia filed in the Circuit Court a pleading titled 'Answer.' In reality the pleading is an answer and counterclaim in that it seeks affirmative relief. Allegations are that appellee is not a fit person to have custody of Wendell but that appellant is and that appellee is delinquent in support payments under the California judgment. Prayer is for custody of the child, a money judgment, and attorney's fees. Attached to this pleading is a certificate of service showing that a copy was mailed to the attorney who filed and dismissed the petition for Habeas Corpus for appellee.

On August 10, 1965, the Circuit Court (pursuant to the order of this court entered on August 5th) transferred the case to the Chancery Court of Washington County.

On April 18, 1966, appellee 'appeared especially' in the Chancery Court and filed a motion to quash the purported 'service of process' alleging 'inter alia' that there had been no service on him; that no summons was ever issued or served and that the Chancery Court was without jurisdiction.

On the 19th day of April, 1966, the chancellor, over the objections of appellant, granted the motion and this appeal followed.

We have detailed the dates of events somewhat at length in order that what we conceive to be the law may be understandably applied to the factual situation.

In the Habeas Corpus proceedings Kenneth Austin dismissed his petition before any defensive pleading had been filed by appellant. He had this right under Ark.Stat.Ann. § 27--1406 (Repl.1962).

A somewhat similar situation was before us in Norton v. Hutchins, Chancellor, 196 Ark. 856, 120 S.W.2d 358, and we there said:

'As we understand the law a plaintiff has the right to dismiss any suit he has brought either by application to the court or by application to the clerk in vacation to dismiss same. If before he dismisses same a set off or counter-claim has been filed the dismissal will not prevent the defendant from trying the issues tendered in the cross-complaint or counter-claim. It is undisputed that after bringing her suit in Texas she dismissed her suits in Arkansas before the chancery clerk in vacation. Final judgments or decrees had not been rendered in the Arkansas cases at the time she dismissed them. She had the absolute right, therefore, to dismiss them as no cross-complaint or counter-claim had been filed in any of the proceedings.'

In connection with the case at bar we should perhaps inquire into the status of the parties in the Habeas Corpus suit in Circuit Court after the petition was dismissed. We find no Arkansas case directly on point but 27 C.J.S. under Dismissal and Nonsuit § 39 states the general rule as follows:

'Unless defendant has interposed a claim for affirmative relief, a voluntary nonsuit, dismissal, or discontinuance is a final termination of the action, and there remains no cause pending in which a third person may be permitted to intervene, or in which defendant may thereafter file an answer or plea. In the absence of circumstances working an estoppel, a dismissal or nonsuit leaves the situation as though no suit had ever been brought, and it has the effect of an absolute withdrawal of the claim and leaves defendant as though he had never been a party. It carries down with...