Hutchinson, In re, No. 8880

CourtCourt of Appeal of Missouri (US)
Writing for the CourtSTONE; TITUS, P.J., and HOGAN
Citation455 S.W.2d 21
PartiesIn the Matter Dianne Cecile HUTCHINSON, Paul Basye Hutchinson and Jennifer Elaine Hutchinson, Minors. Jay M. HUTCHINSON, Petitioner-Respondent, v. Bettie B. WESLEY, Appellant.
Decision Date21 May 1970
Docket NumberNo. 8880

Page 21

455 S.W.2d 21
In the Matter Dianne Cecile HUTCHINSON, Paul Basye
Hutchinson and Jennifer Elaine Hutchinson, Minors.
Jay M. HUTCHINSON, Petitioner-Respondent,
v.
Bettie B. WESLEY, Appellant.
No. 8880.
Springfield Court of Appeals, Missouri.
May 21, 1970.

Page 22

Weldon W. Moore, Moore & Moomaw, Rolla, for appellant.

No appearance for petitioner-respondent.

STONE, Judge.

In this habeas corpus proceeding in the Circuit Court of Phelps County, Missouri, petitioner Jay M. Hutchinson sought and was awarded the major custody (for eleven calendar months each year) of three minor children, namely, Dianne Cecile born December 13, 1951, Paul Basye born April 6, 1954, and Jennifer Elaine born September 27, 1956, of the marriage of petitioner and Bettie B. Hutchinson (now Wesley). Custody of those three children (as well as a fourth, David Carl born October 30, 1949, not involved in this proceeding) had been awarded to the mother in a divorce decree enter in the Superior Court of Marin County, California, on April 5, 1965. During August 1967, the mother married Dr. Paul Wesley, a professor, and returned with him to Rolla, Missouri, where she and her three children and he and three of his children by a former marriage thereafter constituted the members of the Wesley household. This proceeding instituted on November 3, 1967, eventually terminated in an order 'that habeas corpus be and the same hereby is sustained' and that the three minor children be discharged from the custody of their mother (to whom the writ of habeas corpus had been directed) and committed into the custody of their father, the petitioner, for eleven calendar months each year, subject only to the mother's right to custody for one calendar month during the school vacation period each year. Following the filing of the mother's notice of appeal, her counsel have lodged with us a transcript of more than 300 pages reflecting all pleadings, evidence adduced in a two-day trial, exhibits and 'home studies,' have filed an exhaustive brief, and have made an earnest oral presentation.

There has been no appearance of counsel and no brief here on behalf of the petitioner father, and hence no challenge of our appellage jurisdiction. But our initial duty in every case, is ex mero motu, to consider and determine our jurisdiction (In

Page 23

re Estate of Hill, Mo.App., 435 S.W.2d 722, 724(3), and cases there cited); and so recognizing, the mother's counsel have discussed that subject with characteristic candor. In Missouri, the right of appeal is purely statutory and, when not given by statute, no such right exists. 1 It is true that, as the mother's counsel emphasize, statutes authorizing appeals should be construed liberally for appeals are favored in the law, and a fair and reasonable doubt as to the right of appeal in any given case should be resolved in recognition of such right. Listerman v. Day & Night Plumbing & Heating Service, Inc., Mo.App., 384 S.W.2d 111, 120(11), and cases there collected. But counsel's brief ignores, as we may not do, the long and unbroken line of reported cases beginning with Howe v. State, 9 Mo. 690 (1846), in which every appellate court in this state has held that no appeal lies from the decision in a habeas corpus proceeding. 2 Accordingly, the mother's appeal to this...

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10 practice notes
  • Herndon v. Ford, No. 9042
    • United States
    • Court of Appeal of Missouri (US)
    • August 5, 1971
    ...we have appellate jurisdiction (State ex rel. Beeler v. City of Raytown, Mo., 439 S.W.2d 481, 482(2); Hutchinson v. Wesley, Mo.App., 455 S.W.2d 21, 22--23; In re Estate of Hill, Mo.App., 435 S.W.2d 722, 724(3)), more particularly in this instance whether the above-quoted record entry consti......
  • Lipsey v. Lipsey, No. 9009
    • United States
    • Missouri Court of Appeals
    • February 16, 1971
    ...Dudeck v. Ellis, Mo., 376 S.W.2d 197, 204(2); In re Adoption of LLV and SAV, Mo.App., 457 S.W.2d 2, 3(2); Hutchinson v. Wesley, Mo.App., 455 S.W.2d 21, 23(1); V.A.M.R. 82.01), and V.A.M.S. § 512.020 grants a right of appeal only to '(a)ny party to a suit aggrieved by any judgment . . ..' ,(......
  • Williams v. Williams, No. 9121
    • United States
    • Missouri Court of Appeals
    • May 5, 1972
    ...we have appellate jurisdiction (State ex rel. Beeler v. City of Raytown, Mo., 439 S.W.2d 481, 482(2); Hutchinson v. Wesley, Mo.App., 455 S.W.2d 21, 22--23), more particularly in this instance whether the above-quoted entries constitute an appealable judgment vel non. If they do not, we are ......
  • E. W. v. K. D. M., Nos. 34181
    • United States
    • Missouri Court of Appeals
    • March 28, 1972
    ...corpus. Howe v. State, 9 Mo. 690 (1846) to Jones v. State, Mo., 471 S.W.2d 166, 168(2). See also In re Hutchinson v. Wesley, Mo.App., 455 S.W.2d 21, 23 (1970). On the other hand, an en banc opinion of the Missouri Supreme Court confers unimpeached authority upon a line of decisions approvin......
  • Request a trial to view additional results
10 cases
  • Herndon v. Ford, No. 9042
    • United States
    • Court of Appeal of Missouri (US)
    • August 5, 1971
    ...we have appellate jurisdiction (State ex rel. Beeler v. City of Raytown, Mo., 439 S.W.2d 481, 482(2); Hutchinson v. Wesley, Mo.App., 455 S.W.2d 21, 22--23; In re Estate of Hill, Mo.App., 435 S.W.2d 722, 724(3)), more particularly in this instance whether the above-quoted record entry consti......
  • Lipsey v. Lipsey, No. 9009
    • United States
    • Missouri Court of Appeals
    • February 16, 1971
    ...Dudeck v. Ellis, Mo., 376 S.W.2d 197, 204(2); In re Adoption of LLV and SAV, Mo.App., 457 S.W.2d 2, 3(2); Hutchinson v. Wesley, Mo.App., 455 S.W.2d 21, 23(1); V.A.M.R. 82.01), and V.A.M.S. § 512.020 grants a right of appeal only to '(a)ny party to a suit aggrieved by any judgment . . ..' ,(......
  • Williams v. Williams, No. 9121
    • United States
    • Missouri Court of Appeals
    • May 5, 1972
    ...we have appellate jurisdiction (State ex rel. Beeler v. City of Raytown, Mo., 439 S.W.2d 481, 482(2); Hutchinson v. Wesley, Mo.App., 455 S.W.2d 21, 22--23), more particularly in this instance whether the above-quoted entries constitute an appealable judgment vel non. If they do not, we are ......
  • E. W. v. K. D. M., Nos. 34181
    • United States
    • Missouri Court of Appeals
    • March 28, 1972
    ...corpus. Howe v. State, 9 Mo. 690 (1846) to Jones v. State, Mo., 471 S.W.2d 166, 168(2). See also In re Hutchinson v. Wesley, Mo.App., 455 S.W.2d 21, 23 (1970). On the other hand, an en banc opinion of the Missouri Supreme Court confers unimpeached authority upon a line of decisions approvin......
  • Request a trial to view additional results

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