Fulks v. Walker
| Decision Date | 21 February 1955 |
| Docket Number | No. 5-604,5-604 |
| Parties | Elmer FULKS, Petitioner, v. Martha Fulks WALKER, Respondent. |
| Court | Arkansas Supreme Court |
Williamson & Williamson, Mountain View, for appellant.
Chas. F. Cole, Batesville, for appellee.
This petition for a rule requiring the clerk of this court to issue a writ of certiorari to bring up the record made in the court below, later followed by a tender of that record, raises for determination certain procedural questions in the review of habeas corpus proceedings for child custody.
In September of 1954 the respondent in this court, Martha Fulks Walker, filed her petition for a writ of habeas corpus in the Independence Chancery Court, seeking to obtain from her former husband the custody of the parties' three minor children. After a prompt hearing the chancellor, by a decree dated September 27, awarded custody to Mrs. Walker and directed that Fulks, the father, pay $45 a month for support of the children.
Ten days later, on October 6, Fulks filed in this court his petition for a writ of certiorari to review the proceedings in the trial court. In this petition it is asserted that certiorari is the only remedy for the review of habeas corpus proceedings. The prayer is that a writ of certiorari be issued to bring up the record and that the decree be reviewed and set aside. The clerk of this court accepted and docketed the petition, but the requested writ was not issued. Except for a preliminary order of this court, by which Mrs. Walker was required to give bond as a condition to taking the children to her home in Arizona, no further action was taken by the court or by the parties for more than three months.
On January 14, 1955, Fulks filed the present request for a rule requiring the clerk of this court to issue a writ of certiorari to bring up the complete record of the proceedings below. This petition refers to the clerk's failure to issue a writ last October, repeats the assertion that certiorari is the only method of review in habeas corpus cases, and prays that the clerk be required to issue the writ to the end that the record may be brought up and reviewed. Hardly had this petition been submitted to the court for consideration when, on February 9, Fulks tendered to our clerk the complete record of the proceedings below. That tender was refused by the clerk, who took the position that it came too late. The above are all the relevant facts.
It must be understood at the outset that Fulks' petition of October 6 really involves two different functions of the writ of certiorari, which must be considered separately. First, the petition asks that the writ be issued to bring up the physical record. In this sense the writ of certiorari, involving the actual issuance of a written command, was formerly used as a method of directing the clerk of the trial court to forward the bill of exceptions or some other part of the transcript to this court. Rule 5 of this court, 207 Ark. xix, described in detail the method of obtaining the writ in this court.
By Act 555 of 1953 a new method was provided for supplying omissions in the record. Ark.Stats.1947, § 27-2129.1. For this reason, when we revised our rules in January of 1954, all references to the former use of the writ of certiorari to bring up the record were deleted. Hence our clerk was right in not issuing the requested writ last October. His authority in that respect had been withdrawn, and the writ was not actually needed in order for the record to be prepared and lodged here.
Second, Fulks' petition avers that certiorari is the only method of review in habeas corpus proceedings. This allegation, for which there is much support in our cases, refers to an entirely different function and can be understood only in the light of history.
At common law, centuries ago, it was held that a denial of the writ of habeas corpus was not a final judgment, was not subject to the doctrine of res judicata, and could not be reviewed by an appellate court. The reason was that the prisoner, if denied relief in the first instance, was entitled to present his petition anew to every judge in the realm, trial and appellate. Church on Habeas Corpus (2d Ed.), § 386; Ferris, Extraordinary Legal Remedies, § 56. There was obviously no need for an appeal or writ of error if the petitioner could apply to the appellate court or judge without regard to what had occurred at the trial level.
A good many American courts, including this one, voiced their disagreement with the view that a habeas corpus proceeding could not be reviewed. For example, in Ex parte Jackson, 45 Ark. 158, we held that our constitutional power of supervision over the judicial branch of the government included the authority to review habeas corpus proceedings, and certiorari was approved as a...
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Campbell v. State
...appeal of the judgment of conviction. The denial of the petition for habeas corpus was a final, appealable order. See, Fulks v. Walker, 224 Ark. 639, 275 S.W.2d 873. Neither appellant nor the trial court could extend the time for lodging the transcript to a date more than seven months after......
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...and is res judicata of those issues of law and fact necessary to the determination of the legality of the detention. Fulks v. Walker, 224 Ark. 639, 275 S.W.2d 873; Howell v. Bennett, 251 Iowa 1319, 103 N.W.2d 94; Barber v. Gladden, 215 Or. 129, 332 P.2d 641. However, compare Huffman v. Alex......
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Cloird v. State
...jurisdiction of the trial court. 2. In civil matters, the doctrine of res judicata may apply in habeas proceedings. Fulks v. Walker, 224 Ark. 639, 275 S.W.2d 873 (1955). 3. If the trial court desires, it may combine the hearing held on remand to consider petitioner's ground for issuance of ......
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...or decree. Tucker, 195 Ark. at 636, 113 S.W.2d 508. Relying upon Tucker, Justice George Rose Smith stated in Fulks v. Walker, 224 Ark. 639, 642, 275 S.W.2d 873, 875 (1955), "By the decided weight of authority the decree is final, reviewable, and, in the absence of changed conditions, res ju......