Cole v. Cole

• Decision Date: 15 March 1943
• Docket Number: 35102.
• Citation: 12 So.2d 425,194 Miss. 292
• Court: Mississippi Supreme Court
• Parties: COLE v. COLE.

12 So.2d 425

194 Miss. 292

COLE v. COLE.

No. 35102.

Supreme Court of Mississippi

March 15, 1943

George Chaney, of Vicksburg, for appellant.

Appellee not represented in this Court.

GRIFFITH Justice.

On December 18, 1941, appellee made application to the county judge of Warren County for a writ of habeas corpus, praying that the custody of her three children residing with appellant in said county be awarded to her. The county judge on the hearing, sustained the petition and the prayer thereof, and an appeal has been taken direct to this Court.

The question has arisen whether the appeal should have been first to the circuit court. It has always been the policy of the laws of this State to furnish, as speedily as practicable, a remedy in habeas corpus. Often, however, hearings upon such applications have been delayed because of the absence of the circuit judge and the chancellor while holding their terms elsewhere in their districts. One of the purposes, therefore in the establishment of county courts was in the opportunity thereby afforded to further the stated policy of the State in that there would be provided a judicial officer possessing all the qualifications of a circuit judge or chancellor, and who would be available at all times in each of the larger counties of the State for service in habeas corpus cases.

Thus it was that by Section 698, Code 1930, there was and is provided that "the county judge shall have power to issue writs, and to try matters, of habeas corpus on application to him therefor, or when made returnable before him by a superior judge." The effect of this provision is the same as had Section 1917, Code 1930, expressly included the county judge, save perhaps, that he may not make the writ returnable before another judge, as to which we do not now decide, that question not here being before us.

When an application in habeas corpus has been made to a county judge, or has been made returnable before him, he acts not as a county court, but with all the power and authority of a circuit judge or chancellor; wherefore, an appeal may be taken direct to this Court under Section 15, Code 1930.

The parties hereto were formerly husband and wife, residing in Jackson County, in the State of Missouri, and the three children above mentioned were born to them as a result of their union. Sometime about the latter part of 1939, the parties separated in the county and state last mentioned, and the wife instituted therein a suit for divorce and for the custody of the children. About six months thereafter, or in April, 1940, the husband removed to Warren County in this State, this having been done to accept an important employment; and with the knowledge and consent of the wife and mother, he brought the children with him, and also his mother to take care of his household and of the children. He and the children and their grandmother have resided in said Warren County continuously since the last mentioned date.

Although the husband and the children were in Jackson County, Missouri, at the time the divorce suit was instituted, and when summons was there served on the husband as defendant to that suit, no final action was taken therein until June 17, 1941, or for more than one year after the husband and children had removed to and become residents of this State, when a final decree of divorce was rendered and entered in the circuit court of Jackson County, Missouri, which decree or judgment granted also to the wife the full custody and control of the three children.

In her present petition for the writ of habeas corpus, appellee stood solely on the Missouri decree or judgment and offered no other evidence, while the appellant introduced evidence ample to show that it would be to the best interest of the children that they should remain in this State with their father and grandmother under the arrangement...