Ex Parte Le Mond

• Decision Date: 06 December 1922
• Docket Number: No. 23722.,23722.
• Citation: 295 Mo. 586,245 S.W. 1057
• Parties: Ex parte LE MOND.
• Court: Missouri Supreme Court

245 S.W. 1057

295 Mo. 586

Ex parte LE MOND.

No. 23722.

Supreme Court of Missouri, in Banc.

December 6, 1922.

Petition by Daisy Le Mond for writ of habeas corpus directed to Charles E. Mohrstadt, sheriff of the city of St. Louis. Petitioner discharged.

Coffman & Jackson, of St. Louis, and Lofts & Breuer, of Rolla, for petitioner.

Henry S. Caulfield and Oliver Senti, both of St. Louis, for respondent.

ELDER, J.

Daisy Le Mond, petitioner, has sued out of this court a writ of habeas corpus seeking her discharge from imprisonment in the city jail of the city of St. Louis, where she claims to be unlawfully imprisoned at the order of Hon. John W. Calhoun, judge of the circuit court of the city of St. Louis, division No. 16. The writ was directed to Charles E. Mohrstadt, sheriff of the city of St. Louis, who has made return thereto. Pending a determination of the cause by this court, petitioner has been released upon bond.

The facts can best be gathered from the petition, which, after reciting that petitioner is unlawfully deprived of her liberty by order of the above-mentioned judge, alleges as follows:

"That heretofore, to wit, on the _____ day of March, 1922, Herbert O. Le Mond, the husband of your petitioner, filed his suit in the circuit court of the city of St. Louis against your petitioner charging her with general indignities and praying a divorce and the custody of their minor child, Genevieve Le Mond, an, infant about six years of age. That your petitioner made default to said petition; that the same was assigned to division 16 of the circuit court of the city of St. Louis, presided over by said Hon. John W. Calhoun as judge; that said petition was heard in due course and thereupon said judge made and entered a decree on the fourth day of May, 1922, whereby he granted said Herbert O. Le Mond a divorce from your petitioner and purporting to award said Genevieve Le Mond, the infant child of your petitioner, to the board of children's guardian of the city of St. Louis, Mo. That your petitioner was not advised of said feature of said decree; that no certified copy thereof was ever served upon her as required by section 1553 of the Revised Statutes of Missouri, 1919; that no copy of order of any kind was ever served upon her, nor was she ever in default, nor is she now in default of any order ever made upon her which she was able to obey. That said Genevieve Le Mond was and remains in the custody of her grandparents in Mount Vernon, Ill.; that said grandparents withhold and retain the custody of said infant child from the petitioner and against all the world and that your petitioner was and remains wholly without power to take said child from the custody of her grandparents and to bring her into the state of Missouri for any purpose. That after the making of said decree and on the seventeenth day of May, 1922, said court issued its order of attachment against the person of your petitioner ordering her to show cause why she should not be cited for contempt in failing to deliver the custody of said child to the board of children's guardian of the city of St. Louis, Mo.

"That your petitioner made return to said order setting forth the facts aforesaid and duly supported the same by her affidavit; nevertheless, on May 26, 1922, said John W. Calhoun, presiding as judge of said circuit court, announced orally from the bench that your petitioner was in contempt of court in failing to deliver the custody of said child to said board of children's guardian and that she should be fined $50 for such contempt and confined in the city jail for the period of ten days, hence next ensuing. That thereupon said Judge Calhoun ordered said Charles E. Mohrstadt, sheriff, to seize the person of your petitioner and to confine her in said city jail and that said Mohrstadt now unlawfully deprives your petitioner of her liberty by imprisonment in said city jail in pursuance of said order.

"Your petitioner says that said imprisonment is illegal in this, to wit:

"That she has not willfully disobeyed any process or order issued or made by said court lawfully. That said decree of divorce did not order or direct her to deliver the custody of said child unto the board of children's guardian, but merely awarded or purported to award said custody to said board; that your petitioner is not advised and never was advised of the identity of the persons comprising said board or their location; that a certified copy of said decree was never served upon your petitioner as provided by section 1553 of the Revised Statutes of Missouri, 1919; and further that your petitioner was and remains wholly without power to comply with said order as if the same had never been made."

The return of respondent Mohrstadt sets up that petitioner was served with a copy of the writ and petition in the divorce action but failed to plead thereto and made default; that a divorce was granted plaintiff Herbert O. Le Mond and the custody of the minor child, Genevieve Le Mond, was awarded to the board of children's guardians of the city of St. Louis; that subsequent to the order of court so awarding the custody of the said child, "for the purpose of preventing the order of the circuit court as to the custody of said minor child from being enforced, said Daisy Le Mond removed said minor child from the jurisdiction of the court and into the state of Illinois; that thereafter, and on the sixteenth day of May, 1922, said circuit court of the city of St. Louis, by order of court, duly entered of record, ordered said Daisy Le Mond to appear before said court and in division No. 16 thereof on Friday, May 19, 1922, at 2 o'clock p. m., then and there, to show cause, if any, why she should not be punished as and for a contempt of court for failing to deliver said minor child to the board of children's guardians of the city of St. Louis"; that thereafter petitioner filed her answer to said order to show cause alleging: (1) That the court had no jurisdiction to hear and determine the charges contained...