Ex Parte Smith

• Decision Date: 07 February 1918
• Docket Number: No. 16040.,16040.
• Citation: 200 S.W. 681
• Parties: Ex parte SMITH.
• Court: Missouri Court of Appeals

200 S.W. 681

Ex parte SMITH.

No. 16040.

St. Louis Court of Appeals. Missouri.

February 7, 1918.

"Not to be officially published."

Proceeding in habeas corpus by Edwin F. Smith, Jr., to obtain the custody of his daughter, Anna Rosalind Smith, from Fred H. Kicker and Anna Kicker. Petitioner is adjudged custody of the child.

Kinealy & Kinealy, of St. Louis, for petitioner. Block & Sheridan, of St. Louis, for respondents.

ALLEN, J.

The petitioner, Edwin F. Smith, Jr., seeks by a writ of habeas corpus issued from this court to obtain the custody of his daughter, Anna Rosalind Smith, about six years of age, from the respondents, Fred H. Kicker and Anna Kicker, the maternal grandparents of the child.

The petition for the writ avers that the petitioner is the father of the child, and that the mother thereof is a person of unsound mind; that respondents have possession of the child, and refuse to deliver her to petitioner's care and custody, and are illegally restraining her of her liberty. The petition further sets up that heretofore, at the October term, 1914, of the circuit court of the city of St. Louis, petitioner instituted a proceeding in habeas corpus against these respondents for the possession and custody of the child; that the proceeding came on to be heard by the circuit court on November 25, 1914, and that thereupon the circuit court remanded the child to the custody of these respondents, making certain further orders in the premises, and by its judgment attempted to reserve jurisdiction of the cause for the purpose of making such other and further orders therein from time to time as might, in the opinion of the court, be required by changed conditions. And the petitioner avers that all of the aforesaid order and judgment of the circuit court, except so much thereof as remanded the custody of the child to these respondents, is null and void, for the reason that the court had no jurisdiction to make the same; and petitioner alleges that he believes that these respondents "justify their restraint of the said Anna Rosalind Smith by said null and void order and judgment." And it is averred that no application for the relief sought herein has been made to or refused by any superior court or officer.

Respondents by their return admit that they are the maternal grandparents of the child, that petitioner is the father thereof, and that the mother of the child, wife of petitioner, is a person of unsound mind. And respondents admit that they have the custody of the child, but deny that they are illegally restraining the child of her liberty. Respondents state that they hold possession of the child, and are exercising custody and control over her, under and by virtue of the order and decree of the circuit court of the city of St. Louis, referred to in the petition. Respondents deny that such order or decree, or any portion thereof, is void, "and respectfully submit that said circuit court of the city of St. Louis, state of Missouri, has continuing jurisdiction, as reserved in said order and decree, over the custody and control of the person of said minor child, and that any proceedings for the modification of said order, or for the change of the custody or control of said minor, should be properly instituted and prosecuted in said court." And respondents pray that the child be remanded to their custody.

Upon the filing of the return the petitioner moved for judgment thereon; and the issues of law thus arising are presented for our determination.

That portion of the judgment in the habeas corpus proceeding in the circuit court by which that court undertook to retain jurisdiction for the purpose of making other and further orders therein regarding the custody of the child, we must hold to be null and void, as being beyond the jurisdiction and authority of that court in the proceeding before it. In the recent case of State ex rel. Ahrens v. Rassieur, 186 Mo. App. 214, 171 S. W. 688, this court, in an opinion by Reynolds, P. J., passed judgment upon this very identical question, and held that in a habeas corpus proceeding by the father of a child against its grandparents, for the custody of the child, the circuit court had no power to incorporate into the judgment, remanding the child, a provision to the effect that the court retained jurisdiction of the cause for the purpose of making further orders therein; the court having exhausted its jurisdiction when it made the order remanding the child to the custody of the respondents. The reasons for that ruling, and the authorities sustaining it, are fully set forth in the opinion in that case.

Respondents, however, rely upon the proposition advanced by their learned counsel that the judgment in the habeas corpus proceeding in the circuit court is res adjudicata as to petitioner's right to the custody of the child, unless petitioner's right thereto be made to appear by reason of matters occurring since the rendition of the judgment by the circuit court, creating new or changed conditions and circumstances. But under the law in this state we regard it as entirely clear that the judgment in the habeas corpus proceeding in the circuit court is to no extent a bar to the prosecution by petitioner of the proceeding before us. In Weir v. Marley, 99 Mo. 484, loc. cit. 488, 12 S. W. 798, 6 L. R. A. 672, it is said by Brace, J.:

"That the doctrine of...