Carroll v. Carroll

• Decision Date: 15 October 1930
• Docket Number: No. 13002.,13002.
• Citation: 155 S.E. 271
• Parties: CARROLL. v. CARROLL,
• Court: South Carolina Supreme Court

155 S.E. 271

CARROLL.

v.CARROLL,

No. 13002.

Supreme Court of South Carolina.

Oct. 15, 1930.

"Habeas corpus" is proceeding whereby person sought to be taken into custody is illegally restrained of his freedom.

[Ed. Note."—For other definitions of "Habeas Corpus, " see Words and Phrases.]

Appeal from Common Pleas Circuit Court of Lexington County; E. C. Dennis, Judge.

Action by Thomas Theodore Carroll against Marion Guerrant Carroll. From orders over-complaint and motion to set aside the service of amended summons and complaint, the defendant appeals.

Affirmed.

The orders of Judge Dennis are as follows:

This matter comes before me on a demurrer to the amended summons and complaint served on the defendant on the 28th of June instant.

The complaint is demurred to on the ground that the court is without jurisdiction of either of the person of the defendant or the subject-matter of this action. The defendant is a resident of Florida.

Also, on the further ground that another cause of action is pending between the same parties on the alleged cause of action.

Also that the complaint does not state facts sufficient to constitute a cause of action because it appears from the complaint that the subject is an infant son of the plaintiff and defendant; that he was in the lawful possession of his mother at the time he was taken possession of by the sheriff, and that there was consequently no illegal restraint and a possessory action, and injunction is an improper remedy for the court to adjudge the custody of a child, especially between the father and mother.

It appears from the record that Tnomas Theodore Carroll, Jr., is an infant son of the plaintiff and defendant. That the defendant mother appeared in this state in the city of Columbia about June 11, of the present year, and forcibly took from the sister of the plaintiff the child who was then living with its father at his home in this state in the city of Columbia and had been for some months, and was attempting to forcibly take him out of the state, and she was overtaken with him in the town of Swansea, in the county of Lexington, by the sheriff of the county of Lexington, who under certain process took possession of the child and retained him in the possession of the court until the matter was heard by Judge Ramage, at Saluda, who passed an order directing that the child be held by the sheriff until the further order of the court.

Upon the question of jurisdiction the contention of the defendant is that the proceeding by summons and complaint seeking a restraining order is not the proper remedy to adjudicate the possession of an infant child, but that the proceeding under which such judgment may be obtained is one by habeas corpus by which the infant is brought into the court.

The proceeding by habeas corpus is one in which the person sought to be taken into custody is illegally restrained of its freedom. The remedy by habeas corpus could not apply in this case, according to the allegations of the complaint, for the reason that, when the amended complaint was served, the child was not under illegal restraint, but was technically in the possession of the sheriff.

No authority has been cited to me, nor do I know of any, which is to the effect that habeas corpus is the only remedy by which the possession of an infant child can be adjudged.

The objection that there is another cause of action pending between the same parties for the same cause, as the alleged cause of action, as a matter of course must appear upon the face of the complaint, because there was an original complaint, and the amended complaint must be upon the same cause of action as to original complaint. Demurring counsel contends that, in the amended complaint, the plaintiff seeks to sustain his cause of action by alleging certain facts which do not appear in the original complaint, and therefore the amendment to the complaint, as stated therein, is not permissible under the Code. So far as I see, the amended complaint does not state a new cause of action, but simply states certain facts in addition to those stated in the first complaint to sustain his cause of action, and this is the primary purpose of an amended complaint to state simply additional facts in support of its cause of action to those stated in the first complaint.

The contention of the defendant that the complaint does not state facts sufficient to constitute a cause of action; I do not...