In re Pettit

• Decision Date: 08 April 1911
• Docket Number: 17,360,17,422
• Citation: 84 Kan. 637,114 P. 1071
• Parties: In re ELVA PETTIT, Petitioner. v. JOHN A. LEWIS, Appellee ELVA PETTIT (formerly ELVA LEWIS), Appellant,
• Court: Kansas Supreme Court

114 P. 1071

84 Kan. 637

In re ELVA PETTIT, Petitioner.

ELVA PETTIT (formerly ELVA LEWIS), Appellant, v. JOHN A. LEWIS, Appellee

Nos. 17,360, 17,422

Supreme Court of Kansas

April 8, 1911

Decided January, 1911.

Case No. 17,360 is an original proceeding in habeas corpus.

Case No. 17,422 is an appeal from Harper district court. Opinion filed April 8, 1911. Affirmed.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. SUPREME COURT--Original Jurisdiction--Supervisory Control Over Inferior Courts. The grant of original jurisdiction to the supreme court in quo warranto, mandamus and habeas corpus comprehends and carries with it authority to exercise superintending control over inferior courts to the extent that it may be exerted by those writs and proceedings.

2. DISTRICT COURT -- Appellate Jurisdiction -- Supervisory Control Over Inferior Courts. In addition to its appellate jurisdiction the district court is vested with authority to supervise and control inferior courts and tribunals in order to prevent and correct errors and abuses.

3. HABEAS CORPUS--Appeal from Probate Court to District Court. An appeal may be taken to the district court from a decision of the probate court in a habeas corpus proceeding.

4. JUDGMENTS--Custody of Children--Modification of Decree--Notice--Interference by Habeas Corpus. A district court which renders a judgment divorcing parties and providing for the custody, education and maintenance of minor children holds a continuing jurisdiction in respect to the children, and may at any time, upon proper application and notice, modify its decree whenever the altered conditions or circumstances of the case or the parties require it, and when due notice of an application to modify the judgment has been made the probate court can not, by a writ of habeas corpus or otherwise, deprive the district court of power to modify the judgment nor interfere with its authority to change the custody and control of the children.

E. C Wilcox, for the petitioner and appellant.

George E. McMahon, for the respondent and the appellee.

OPINION

JOHNSTON, C. J.:

These proceedings involve the custody of Nadene Lewis, the infant daughter of Elva and John A. Lewis. On April 26, 1909, Elva Lewis obtained a decree of divorce from John A. Lewis, and she was given the custody of Nadene, who was then about four years of age, and of another child, who has since died. Shortly after the divorce she removed to Oklahoma City, where she conducted a rooming house. On July 20, 1910, she signed a paper in which it was stated that she relinquished the custody and control of Nadene and stipulated that thereafter John A. Lewis, her former husband, should have the custody, care and control of the child. He brought Nadene to Harper county, Kansas, and placed her in the home of his father and mother, with whom he lived. The day following the surrender of Nadene, Elva Lewis married Charles Petitt, a quarter-blood Indian of the Cherokee tribe. No question was raised as to the right of John A. Lewis to the custody of Nadene until he served a notice on Elva Petitt that he would ask the district court of Harper county to modify its decree in the divorce proceedings so as to give the custody and control of the child to him. The notice was served on October 14, 1910, and in it the time fixed for a hearing was November 11, 1910. On October 22, 1910, and upon the application of Elva Petitt, the probate court of Harper county issued a writ of habeas corpus, the purpose of which was to take Nadene from her father and place her again in the custody of Elva Petitt. At the end of a hearing, begun on October 31, 1910, in which the probate court was informed of the notice and the proceedings in the district court, the probate court made an order awarding the custody of the child to Elva Petitt. Prior to that time, and on October 27, 1910, the district court, on the application of John A. Lewis, had issued an order directing the sheriff, who had the custody of Nadene, not to surrender that custody nor allow her to be taken out of the jurisdiction of the court, but to hold and bring her before the court on November 11, 1910, when the hearing for the modification of the decree was to be had. The sheriff then declined to surrender the custody of the child in obedience to the order of the probate court, and, on the application of Elva Petitt alleging that the sheriff was illegally restraining the child, a writ of habeas corpus was issued by this court on November 3, 1910.

Afterward, and on November 11, 1910, a trial was had in the district court, in pursuance of the notice given October 14, 1910, wherein considerable testimony was given concerning the habits, character and circumstances of the mother and father of Nadene. The district court modified the decree previously rendered and adjudged that the care and custody of Nadene should be given to the father, John A. Lewis, but it was provided in the modified decree that it was not intended to, and should not, conflict with any orders the supreme court might make in the proceedings pending here. An appeal was taken from the decision of the district court, and that appeal and the original proceeding in habeas corpus were submitted together.

The appellant contends that the district court was without jurisdiction to change the custody of the child, and this upon the ground that when the probate court issued the writ of habeas corpus it acquired jurisdiction of the child and the exclusive authority to determine with whom the custody should be in the future. It is argued that in habeas corpus the probate court is of equal rank with the supreme and the district courts, and that its orders respecting the custody of the child are just as effectual and binding as those made by the higher courts. While it is vested with jurisdiction in habeas corpus, it is inferior to the supreme and the district courts and is subject to the supervisory power of both. The supreme court stands at the head of our judicial system, with the highest appellate jurisdiction, and, besides, it is vested with original jurisdiction in quo warranto, mandamus and habeas corpus. While the constitution does not in specific terms provide that the supreme court shall have supervisory power over inferior courts, it undoubtedly has such superintending control as may be, and generally is, exercised through the original writs which the constitution authorizes it to issue. The action of inferior courts has frequently been supervised and controlled by the supreme court through these prerogative writs. (Munkers v. Watson, Judge, &c., 9 Kan. 668; Duffitt & Ramsey v. Crozier, Judge, 30 Kan. 150, 1 P. 69; The State, ex rel., v. Webb, Judge, 34 Kan. 710; Bird v. Gilbert, 40 Kan. 469, 19 P. 924; City of Emporia v. Randolph, 56 Kan. 117, 42 P. 376; Grimes v. Barratt, 60 Kan. 259, 56 P. 472; Bleakley v. Smart, 74 Kan. 476, 87 P. 76.) The subject of the superintending control and supervisory jurisdiction of superior over inferior courts is elaborately treated in a note appended to State ex rel. Fourth National Bank v. Johnson, 51 L. R. A. 33. In summing up the result of the authorities it is said:

"The constitutional or statutory grant of power to issue the writs by means of which the power of superintending control is exercised comprehends and carries with it the authority to exercise the power of superintending control to the extent that it can be exerted by those writs." (p. 111.)

The district court is superior to the probate court, not only because of the appellate power conferred, the prerogative writs which it may issue, and the higher character of its jurisdiction, but the statute expressly provides that it shall have general supervision and control of inferior courts and tribunals to prevent and correct errors and abuses. (Gen. Stat. 1868, ch. 28, § 1, Gen Stat. 1909, § 2390.) The probate court is a court of record and is vested with jurisdiction in cases of habeas corpus, and as to proceedings clearly within its jurisdiction it is not to be considered as an inferior court; but, even as to habeas corpus, its orders and judgments may be corrected and revised upon appeal. (Gen. Stat. 1868, ch. 28, § 1, Gen. Stat. 1909, § 2390.) In Grimes v. Barratt, 60 Kan. 259, 56 P. 472, it was held that under section 583 of the old code error from the judgment of the probate court would lie, and the new code in terms provides that a judgment or final order of the probate court may be reversed, vacated or modified by the district court. (Code 1909, § 564.) The new code abolished proceedings in error and provided that such judgments and orders shall be reviewed on appeal. This broadened the power theretofore granted, so that now there may be a review and retrial of the questions of fact as well as of law involved in appeals from probate courts, and section 571 of the code of 1909 points out the method by which an appeal may be taken. It is suggested that a provision of the act relating to executors and administrators prohibits an appeal in cases of habeas corpus. That act enumerates twelve kinds of decisions from which an appeal will be allowed, and this is followed by a clause providing that there shall be an appeal "in all other cases where there shall be a final decision of any matter arising under the jurisdiction of the probate court, except in cases of habeas corpus and injunction." (Gen. Stat. 1868, ch. 37, § 188, Gen. Stat. 1909, § 3624.) This act, however, only relates to the subject of the settlement of the estates of deceased persons and the powers and duties of executors and administrators in...