Ex parte Jack v. Jack
| Decision Date | 20 July 1922 |
| Citation | 243 S.W. 314,295 Mo. 128 |
| Parties | Ex parte KARL JACK and CALVIN JACK, Petitioners, v. KARL F. JACK and JOHN W. CALHOUN, Judge |
| Court | Missouri Supreme Court |
Writ awarded.
Robert A. Thomann for petitioners.
Holland Rutledge & Lashly for respondents.
OPINION
In Banc.
Habeas Corpus.
Upon proper application our writ of habeas corpus was issued and directed to Karl F. Jack (an individual) and Judge J. W. Calhoun of the Circuit Court of the City of St. Louis. At one time Judge Calhoun had been judge of Division No. 2 of said circuit court, but at the issuance of our writ he was not judge of said division, but of another division of said court. Prior to the time that Judge Calhoun was assigned to Division No. 2 of the St. Louis Circuit Court, there had been pending and tried and determined the divorce case of Blanche A. Jack v. Karl F. Jack. By a judgment, the plaintiff was granted a decree of divorce, the custody of the children (including the two petitioners for our writ), and certain allowances for alimony and support of the children. The case now before us is submitted upon the pleadings. From them it appears that by agreement or otherwise there were several modifications of the original decree, but we are concerned with only two of them. The last was made by Judge Calhoun. Both Judge Calhoun and Karl F. Jack have filed returns, and some of the facts therein stated are denied by replies. Both Judge Calhoun and Jack have demurred to the replies to their returns, and the cause is submitted upon the pleadings. Of course disputed facts cannot be considered in the disposition of this proceeding. Things that are admitted or not disputed can be considered, and upon those matters the issues must be determined. Further facts will be noted in the course of the opinion, as the points made require.
I Judge Calhoun asks to be dismissed from the proceeding on the ground that he is no longer presiding in Division No. 2 of the Circuit Court of St. Louis, and was not so presiding at the time of the issuance of our writ. The point made is, that as he has no connection with that division of the circuit court, he has no power over the case of Jack v. Jack, or the children therein involved. There is no denial of this status in the replies to the returns. It therefore stands admitted that Judge Calhoun has no present control over the case of Jack v. Jack or of the children involved by the several decrees (modified and otherwise) in that case. He had no physical custody of the children as appears from the pleadings. His only connection was in the making of a modification of the preceding decree, which may become material as to respondent Jack, but not as to Judge Calhoun. When Judge Calhoun was transferred from Division No. 2, he lost all connection with the case of Jack v. Jack, and the children involved in that cause. No claim is made that he is otherwise connected. Upon the admitted facts, Judge Calhoun should be dismissed from this proceeding with his costs, and it is so ordered.
II. Going to respondent Karl F. Jack, the defendant in the divorce proceeding, and the father of the two children (Karl Jack and Calvin Jack) involved in the present proceeding, a further statement of conceded facts should be made. The petition for our writ is not only sponsored by Karl Jack and Calvin Jack, but by their mother, Blanche Crenshaw, formerly Blanche Jack. January 25, 1918, Blanche Jack procured a decree of divorce from Karl F. Jack, with the custody of her children and alimony as aforesaid. Judge Grimm then presided in Division No. 2 of the circuit court. Jack paid alimony but a short time, and disappeared. Later he served overseas in the World War. Upon his return he had the decree modified, and he was given custody of the two children here involved. There are allegations as to certain agreements under which the modification was made, but they are immaterial here. Judge Falkenhainer was then judge of Division No. 2 of said court, and this proceeding was on July 14, 1919.
January 13, 1920, the wife, plaintiff in the divorce proceeding, moved to modify the decree, which motion was heard on January 24, 1920 (both parties appearing), and on January 28, 1920, the decree was modified so as to again give the mother the custody of the children, including the two in this suit. The validity of this decree or modification of the last previous decree is not questioned. This decree was entered by Judge Calhoun whilst presiding over Division No. 2. A later decree or modification, by the same judge, is questioned.
On March 24, 1920, there was filed in said case (Jack v....
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