Bradley v. Graham, 43248
| Decision Date | 01 June 1964 |
| Docket Number | No. 43248,43248 |
| Citation | 250 Miss. 244,164 So.2d 772 |
| Parties | Olivia Ann Graham BRADLEY, Appellant-Petitioner, v. Mr. and Mrs. D. K. GRAHAM, Appellees-Defendants. |
| Court | Mississippi Supreme Court |
Horace L. Merideth, Jr., Greenville, for appellant.
Philip Mansour, Greenville, for appellee.
On March 16, 1964, the appellant filed a petition for a writ of habeas corpus in the County Court of Washington County, seeking to regain the custody of her daughter then approximately three and one-half years of age. From an order sustaining a motion to dismiss, this appeal is taken.
The appellant was awarded a divorce from her husband on July 11, 1962, in the Chancery Court of Washington County. This decree awarded the custody of the child to her mother in accord with the following terms of the decree:
The paternal grandparents were not parties to this divorce action. No rights of custody were granted to the natural father by the terms of the decree.
The appellant remarried on December 4, 1962, and removed with her child to the State of Florida, the residence of her present husband without any attempt being made to modify the decree. The father of the child has been outside the continental limits of the United States serving in the Armed Forces for many months, and so remains. In August 1963, the appellant came to visit with her parents in Lake Village, Arkansas. The paternal grandparents there visited with the child on several occasions. On one of these visits, August 22, 1963, Mrs. Graham, the grandmother, against the wishes of the mother and without her consent, brought the child to her home in Washington County, Mississippi. The child has remained with the appellees to this date over the protestations of the appellant.
On September 6, 1963, the mother filed a petition to modify the original decree of divorce in the Chancery Court of Washington County, naming as defendants therein the paternal grandparents and not the father of the child. It is argued by way of explanation that this was done because the father was given no custodial rights in the original decree. Prior to decision on this petition to modify, the appellant, on September 13, 1963, filed a petition to cite the appellees for contempt of court in their refusal to abide by the terms of the divorce decree. After a hearing on September 21, 1963, this petition was dismissed, whereupon the appellant amended the petition to modify so as to make the father a party defendant. The appellees resisted this amendment by motion to dismiss. A motion was also filed on behalf of the father under the provisions of Title 50, App. U.S.C.A. Sec. 521, a part of the Soldiers' and Sailors' Civil Relief Act, to either stay the proceedings, or, in the alternative, to grant time in which to plead. On October 24, 1963, the court overruled the motion to dismiss, granted the appellees ten days within which to plead, and granted the father ninety days in which to plead. Thereafter, on October 26, 1963, the appellees filed a demurrer to the petition to modify, and on November 8, 1963, appellant filed a motion for temporary custody of her child until the March 1964 term of court. The motion for temporary custody was dismissed on November 13, 1963, after legal argument by the attorneys, no evidence having been taken. The demurrer to the petition to modify was overruled by the court the following day.
Appellees filed their answer on December 6, 1963; the father answered and filed a cross-bill on January 3, 1964. This cross-bill contained an allegation of unfitness in such general and vague terms that a motion for a bill of particulars had to be filed in regard thereto. This motion was sustained on March 6, 1964, the father being granted thirty days from that date to comply with the bill of particulars, and on the same date, pursuant to motion for a continuance of March 2, 1964, by the father under the Soliders' and Sailors' Relief Act, the cause was continued to the July 1964 term of the court.
On March 16, 1964, the mother filed a petition for a writ of habeas corpus in the County Court of Washington County, seeking to regain custody of her child from an unauthorized withholding by the paternal grandparents and upon changed circumstances and conditions since the time of the divorce. The appellees responded by a motion to dismiss because of interference with the jurisdiction of the chancery court, and also a motion to dismiss for nonjoinder of the father, it being alleged in such motion that he is a necessary party to the suit. A stipulation was entered into by the parties to the effect that the appellees have been dismissed without prejudice from the suit brought by the mother in the chancery court to modify the divorce decree entered therein on July 11, 1962. Thus there is now pending a suit in the Chancery Court of Washington County between appellant here and her former husband, he being overseas in the service. A hearing was had on this writ of habeas corpus on March 25, 1964, which consisted of the introduction of the various chancery pleadings herein referred to, the testimony of the chancery clerk that the chancery cause was still pending, and argument of counsel as to the appellees' motion to dismiss. At the conclusion thereof, the court ruled that a hearing upon the habeas corpus proceeding would constitute interference with the jurisdiction of the chancery court and sustained the appellees' motion in this regard. The court did not rule upon the motion as to whether the father was a necessary party to the suit.
The questions to be determined here are (1) whether the court erred in sustaining the appellees' motion to dismiss the writ of habeas corpus as an interference with the jurisdiction of the chancery court of the county; and (2) whether the father is a necessary party to this writ of habeas corpus.
We are of the firm conviction and so hold that the county court erred in dismissing the habeas corpus proceeding as an interference with the jurisdiction of the chancery court.
The right of a complainant to take without prejudice a voluntary dismissal, said to have been an original right in equity, is now placed beyond all question by our statute. Sec. 1538, Miss.Code 1942; Griffith, Miss. Chancery Practice, 2d ed. 1950, Sec. 534. The appellant dismissed the defendants, appellees here, from the chancery suit to modify. The father is not a party to this suit. Thus the decision here is confined to a situation where a parent has invoked the aid of a court other than that which made the original custodial...
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Smith v. Watson
...custody is unfit to exercise or has abandoned custody of the child. Mixon v. Bullard, 217 So.2d 28 (Miss.1968); Bradley v. Graham, 250 Miss. 244, 164 So.2d 772 (1964); 39 Am.Jur.2d Habeas Corpus Sec. 92 (1968). Furthermore, the prior decree can be attacked for want of jurisdiction and there......
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First American Nat. Bank of Iuka v. Alcorn, Inc.
...This section establishes beyond question the right of a complainant to take a voluntary dismissal without prejudice. Bradley v. Graham, 250 Miss. 244, 164 So.2d 772 (1964). This right exists in a party to a suit in chancery until the time when the cause has been submitted to the chancellor ......
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Reynolds v. Riddell, 46356
...the latter remedy was not available to appellee as a device to amend the existing decree. * * * Compare, however, Bradley v. Graham, 250 Miss. 244, 164 So.2d 772 (1964), and Neal v. Neal, 238 Miss. 572, 119 So.2d 273 In Honeywell v. Aaron, 228 Miss. 284, 294, 87 So.2d 562, 565 (1956), we qu......
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Mixon v. Bullard, 45089
...Craft, 204 Miss. 568, 37 So.2d 770 (1948); Neal v. Neal, 238 Miss. 572, 119 So.2d 273 (1960). In Neal,supra, and in Bradley v. Graham, 250 Miss. 244, 164 So.2d 772 (1964), we pointed out that there was a distinction between the rule announced in Hinman where the parties to the habeas corpus......