Campbell v. Campbell
| Decision Date | 09 February 1931 |
| Docket Number | 29054 |
| Citation | 132 So. 324,159 Miss. 708 |
| Court | Mississippi Supreme Court |
| Parties | CAMPBELL v. CAMPBELL |
HABEAS CORPUS.
Judgment in habeas corpus proceeding between husband and wife adjudicating custody of child held res judicata on that issue in subsequent divorce suit, in absence of material changes in condition or circumstances.
HON. T P. GUYTON, Chancellor.
APPEAL from chancery court of Noxubee county, HON. T. P. GUYTON Chancellor.
Suit by Esther I. Campbell against R. C. Campbell. Decree for defendant on his cross-bill, and complainant appeals. Affirmed.
Affirmed.
Reily & Parker, of Meridian, for appellant.
The powers possessed by a court in a habeas corpus hearing are very different to the powers of a chancery court, sitting as such, and performing the duties of that court either in term time or vacation concerning the custody of children.
A decree made in a habeas corpus proceeding fixing the custody of a minor child, does not preclude the court from making provisions for custody and support of such child in a subsequent divorce proceeding.
Everitt v. Everitt, 94 A. S. R. 276.
The judgment of a court in a proceeding in habeas corpus of a child will not prevent another court from afterwards making a different order, where the welfare of the child requires it, even though no material change of circumstances is shown.
Re Harriet King, 66 Kan. 695, 67 L. R. A. 783.
A habeas corpus court is without power to do more than set the child at liberty or award its custody to the party entitled thereto, and this of necessity to be based upon a condition uninfluenced by the powers of the chancery court to supervise and enforce additional rights and powers. And since the duties of the two courts are different, the questions therein tried are different, and the finding of one court is not res adjudicata when different duties concerning the same subject-matter is up for consideration.
Gray v. Gray, 83 So. 726; Newhall v. Enterprise Mining Co., 137 A. S. R. 461; Yarbrough v. Dunham, 94 So. 892.
If it is doubtful whether a second suit is for the same cause of action as the first, it has been said to be a proper test to consider whether the same evidence would sustain both. It has been said that this method is the best and most accurate test as to whether a former judgment is a bar to a subsequent proceeding between the same parties, and it has been designated as infallible.
A judgment is not conclusive on any point or question which from the nature of the case, the form of action, or the character of the pleadings, could not have been adjudicated in the suit in which it was rendered, nor the action, having been at law, of a claim or defense, which would be cognizable only in equity nor as to any matter which must necessarily have been excluded from consideration of the court as beyond the jurisdiction of the court.
A decision in a habeas corpus case whereby the custody of a child is awarded as between parents, does not make the question of such custody res adjudicata where a subsequent change in conditions is shown, nor preclude the court in a subsequent suit for divorce between the parents from making a further decree in regard to the custody of such child.
Stewart v. Stewart, 180 P. 165.
Dorroh & Strong, of Macon, and Geo. T. Mitchell, of Jackson, for appellee.
Former adjudication on the question of the rights to the custody of an infant upon habeas corpus may be pleaded as res adjudicata unless some new facts has altered the status of the case.
Note to Everett v. Everett, 94 A. S. R. 276; A. S. R. 435; 5 A. S. R. 654; Re Harriett King, 66 Kan. 695, 67 L. R. A. 783; Dawson v. Dawson, 110 A. S. R. 800; Brooks v. Logan, 2 A. S. R. 177.
Where a court has jurisdiction of a subject-matter, and the parties in interest, its judgment is not alone res adjudicata of the question actually presented by the pleadings, but is also res adjudicata of all questions necessarily involved, and which could have been presented.
Bates v. Strickland, 139 Miss. 636; Dean v. Board of Supervisors, 135 Miss. 268; Vinson v. Colonial & U. S. Mortgage Co., 116 Miss. 59; Harrison v. Turner, 116 Miss. 550; Hardy v. O'Pry, 102 Miss. 197; Fisher v. Browning, 107 Miss. 729.
In a second action between same parties or their privies although cause of action may be different,...
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