In re Morgan

• Decision Date: 27 June 1893
• Parties: In re MORGAN.
• Court: Missouri Supreme Court

22 S.W. 913

117 Mo. 249

In re MORGAN.

Supreme Court of Missouri.

June 27, 1893.

DIVORCE — JURISDICTION — CUSTODY OF CHILDREN.

1. Under Rev. St. 1889, § 4505, providing that the custody of the children, and the alimony of the wife, may be the subjects of orders when the divorce shall "be adjudged," and that the court may decree alimony "pending the suit," when just, the court has no jurisdiction, pending suit, to determine custody of the children. Per Barclay and Sherwood, JJ., dissenting.

2. Even if a circuit court in which a suit for divorce is pending has power, before final adjudication, to determine the custody of the children, still, it not having done so, or been asked to do so, the supreme court may, on habeas corpus proceedings authorized by Rev. St. § 5415, determine their custody, though the action for divorce is still pending in the circuit court. Per Barclay and Sherwood, JJ., dissenting.

In bank.

For majority opinion, see 21 S. W. Rep. 1122.

E. A. B. Garesche, for petitioner. Lionberger & Shepley, for respondent.

BARCLAY, J.

We do not concur in the opinion of the learned chief justice, to the effect that the supreme court cannot properly entertain the present proceeding.

1. The fact that the child is not within the state does not, of itself, prevent the court from adjudicating its custody. The father has been personally served with the writ within the local jurisdiction. He has control of the body of the child. Its detention or restraint (referred to in the habeas corpus act) is hence committed "within this state," where the person is found who so detains or restrains it, though the child may be outside the territorial limits of the state at present. It is unnecessary to enlarge upon this point, for there is no difference in the court concerning it. Rivers v. Mitchell, (1881,) 57 Iowa, 193, 10 N. W. Rep. 626; Reg. v. Barnardo, (1889,) 23 Q. B. Div. 305.

2. It is next claimed that the supreme court cannot properly act, because the circuit court, in the divorce suit, has jurisdiction to dispose of the custody of the child, as explained in the prevailing opinion here. By the statute defining the power of the trial court, and regulating the procedure in civil actions for divorce, (Rev. St. 1889, § 4505,) "the care, custody, and maintenance of the children, or any of them," as well as the matter of alimony of the wife, may be the subjects of orders, when the divorce "shall be adjudged;" and the court is further authorized to "decree alimony pending the suit for divorce in all cases where the same would be just," etc. But no such power to dispose of the custody of children before the decree, pending the suit, is conferred. If the statute were entirely silent on the subject of the court's power during the early stages of the action, the case at bar would bear a more favorable aspect for defendant than it now presents. But where the law expressly grants authority to act provisionally on the subject of alimony, and in the same section declares that the custody of the children may be dealt with by the final adjudication of divorce, we are confronted with a very plain exhibition of legislative intent. Whatever may be the origin of the jurisdiction in suits of divorce, as to which it seems unnecessary now to inquire, we are firmly of the opinion that, in so far as the statute law defines and regulates the exercise of the jurisdiction, that law must be observed and followed. Stokes v. Stokes, (1823,) 1 Mo. 320; Doyle v. Doyle, (1858,) 26 Mo. 545. Where power is granted to deal with two subjects — alimony and custody of children — by final decree, and in the same connection it is declared that one of those subjects — alimony — may be acted upon pending the suit, it must certainly be held that the power to deal with the other...