In re Gladys Morgan

• Decision Date: 27 June 1893
• Citation: 21 S.W. 1122,117 Mo. 249
• Parties: In re Gladys Morgan
• Court: Missouri Supreme Court

21 S.W. 1122

117 Mo. 249

In re Gladys Morgan

Supreme Court of Missouri

June 27, 1893

Dissenting opinion at 22 S.W. 913

Writ denied.

Edmond A. B. Garesche for relator.

(1) This is not a proceeding to determine the question of the guardianship of this child, but one touching her custody, and is prosecuted before this court under the express authority of the statute. Revised Statutes, 1889, sec. 5415; Re Laura Doyle, 16 Mo.App. 159. Were it a proceeding to adjudge the guardianship of the child, the probate court alone, and not the circuit court, as is contended by respondent's counsel, would have the right to determine it. Revised Statutes, 1889, sec. 5281. (2) The mere pendency of divorce proceeding between this respondent and the relator, did not give the circuit court exclusive, nor even concurrent jurisdiction with the court of appeals or with this court to determine the question of this child's custody. First because the custody was not prayed for in that proceeding pending in the circuit court by either the relator herein plaintiff therein, or by the respondent, the defendant therein. Coke v. Hamlin, 39 Miss. 424; 2 Bishop on Marriage, Divorce and Separation, sec. 1184. Second, because the jurisdiction of the circuit court in such cases is purely statutory, and the statute limits its right to award the custody only upon a final decree. Revised Statutes, 1889, sec. 4505. Third, because the child as averred in the return is in the state of New York. Cooley's Constitutional Limitations [6 Ed.], p. 449; Kline v. Kline, 57 Iowa 387; 2 Bishop on Marriage and Divorce and Separation, sec. 1189; Hawe's Jurisdiction of Courts, sec. 105; Barker v. Dayton, 28 Wis. 367; Hopkins v. Hopkins, 39 Wis. 167. Fourth. Because if the best interests of the child demanded it, its custody could not in that form of proceeding be given in a third person. In re Bort, 25 Kan. 310; Hopkins v. Hopkins, 39 Wis. 167. (3) None of the prior proceedings pending between these parties for the possession of this child were heard upon their merits, but went off simply upon pleas to the jurisdiction, and consequently cannot now be urged as res adjudicata against relator's right to the custody of this child. There was no release from the alleged imprisonment complained of, but the discharge of respondent for want of jurisdiction in the court, amounted to a denial of the relief prayed for. Weir v. Marley, 99 Mo. 490; Re Laura Doyle, 16 Mo.App. 159; Hurd on Habeas Corpus [2 Ed.], pp. 573, 575, 576; Church on Habeas Corpus, sec. 386. (4) The father's legal right to the custody of his child, while prima facie, has, in this country, at least, long been held to be subservient to the child's best interest. And where, as in this case, it is alleged that his moral character is such that he should not have its custody, the court's duty is to place it in other custody. Church on Habeas Corpus, sec. 430. (5) As between a mother and a third person, her right is paramount. Even outside of her allegation "that the grandmother and father are not proper persons to have the custody of this child," as between them and her she has the best right, and one which the court have uniformly upheld. Church on Habeas Corpus, sec. 443, p. 579; Armstrong v. Stone, 9 Gratt. 102.

Lionberger & Shepley for respondent.

(1) The child is now, and for four months has been, in the state of New York. She was not removed from this state for the purpose of avoiding the process or jurisdiction of its courts. She is not restrained of her liberty within this state. This court, therefore, has not jurisdiction to require her to be produced here and surrendered to the relator or any other person. Revised Statutes 1889, secs. 5345, 5394, 3496, 5352, 5353; Re Jackson, 15 Mich. 417; Story on Conflict of Laws, [8 Ed.] pp. 22, 29, 31, 35; Woodworth v. Spring, 4 Allen, 321; Roterdeau v. Rous, 1 Atkinson, 544; Daulson v. Matthews, 4 Term Reports, 503; Rex v. Cowle, Burr. 835; Railroad v. Railroad, 15 How. 242; Cooley, Constitutional Limitations [6 Ed.], p. 499. (2) The probate court, or the circuit court of the city of St. Louis, where the suit for divorce is pending between relator and respondent, has exclusive jurisdiction to adjudge the guardianship of the child; and if the welfare of the child requires the immediate intervention of a court on its behalf, resort ought to be had in the first instance to said circuit court. Revised Statutes 1889, secs. 5281, 4505; Re Delano, 37 Mo.App. 185; Williams v. Williams, 13 Ind. 523; Re Laura Doyle, 16 Mo.App. 159; People v. Mercein, 8 Paige, 55, 56. (3) The judgment of the circuit court of the city of St. Louis, rendered on the sixth day of January, 1893, awarding the custody of the child to the respondent, is res judicata, and properly pleadable in bar of this proceeding, the parties being the same, no new facts having transpired, and all parties being in the situation they then were in. Mercein v. People, 24 Wend. 98; cited and approved Weir v. Marley, 99 Mo. 490; Freeman on Judgments [4 Ed.], sec. 324. (4) The respondent, as father of the child, is its legal guardian. He has transferred its custody to his parents in New York. It is not alleged that the grandparents are improper persons to have charge of the child, or that its welfare requires the intervention of this court. The court ought not, therefore, to interfere with his paternal authority, until in a proper proceeding he and his parents be adjudged unfit. Revised Statutes 1889, sec. 5279; Church on Habeas Corpus, secs. 441, 443; Mercein v. People, 24 Wend. 98. (5) The child, Gladys Morgan, is not within the power or control of the respondent, and therefore he ought not to be required to produce her. Revised Statutes, secs. 5350, 5352, 5353, 5360. (6) It is not necessary to produce the body of the child with the return to the writ, in advance of an adjudication of the questions of law involved. Revised Statutes, secs. 5263, 5262.

Black, C. J. Barclay and Sherwood, JJ., dissent.

OPINION

In Banc

Habeas Corpus.

Black C. J. --

On the sixth of February, 1893, the petitioner, Mary E. Morgan, sued out of this court a writ of habeas corpus to obtain possession of her child between three and four years of age, then in the custody of Harry E. Morgan, the father of the child and husband of the plaintiff. The defendant made return to the writ, setting up various matters, some of which are admitted and others denied. Two of these issues go to the jurisdiction of this court. As to these issues the parties have agreed upon the facts, and they present the only questions now before us for consideration.

The agreed facts are:

"First. It is admitted that the child Gladys Morgan was on the eighteenth day of October, 1892, removed by respondent, her father, to the city and state of New York, where she now is and was at the time of the issuance and service of the writ issued in this case; but in this connection it is also admitted that the respondent has not at any time forfeited or given up his parental power of control over the said Gladys Morgan and could, and still can, in obedience to the command of the writ if so ordered by the court, and if sufficient time be given for that purpose, produce the said child before this court.

"Second. That divorce proceedings are pending in the circuit court of the city of St. Louis, at the instance of relator against respondent, but that the custody of the said Gladys Morgan has not been asked or prayed for in said proceeding by either the relator or respondent."

The first inquiry is, whether the circuit court has jurisdiction in the pending divorce suit to award custody of the child to the party entitled thereto, having due regard to its welfare.

Section 4505, Revised Statutes 1889, provides: "When a divorce shall be adjudged, the court shall make such order touching the alimony and maintenance of the wife, and the care, custody and maintenance of the children, or any of them, as, from the circumstances of the parties and the nature of the case, shall be reasonable," etc.

That the statute gives the circuit court the power to award the custody of a child to either of the parties to the divorce suit cannot be doubted and is not questioned. But it is suggested here that this jurisdiction is purely statutory and by the statute the circuit court can only make such award upon a final decree, and hence has no power to make any order for the custody of a child while the suit is pending. This contention is not well taken. It is true the circuit court acquires its jurisdiction in divorce suits by force of the statutes; but it is to be observed that this jurisdiction is two fold. The divorce and alimony part of this jurisdiction belonged to the ecclesiastical courts in former times in England; and the power to make awards as to the custody of children is a part of the ancient chancery jurisdiction. The circuit court exercising ecclesiastical powers in divorce proceedings is governed, as to the substantial rights of the parties, by the common-law practice in such cases, except as modified by statute law. State ex rel. v. St. Louis Court of Appeals, 99 Mo. 216, 12 S.W. 661, and cases cited. And in like manner the circuit court in administering this particular chancery jurisdiction granted by the statute will be guided by chancery practice, except as modified by the statute. While the statute does not in terms say the circuit court shall have power to make ad interim orders concerning the custody of children, still the general power granted by the statute carries with it the power to make such temporary orders. Scoggins v. Scoggins, 80 N.C. 318. Statutes like the one in question exist in many, if not most, of the states; and it is generally held that they give the court ample power...