In re Sherrill

• Decision Date: 26 June 1944
• Docket Number: 37543.
• Citation: 19 So.2d 203,206 La. 457
• Court: Louisiana Supreme Court
• Parties: In re SHERRILL.

19 So.2d 203

206 La. 457

In re SHERRILL.

No. 37543.

Supreme Court of Louisiana

June 26, 1944

Rehearing Denied July 14, 1944.

Prowell & McBride, of New Orleans, and Parker Seale & Kelton, of Baton Rouge, for applicant.

Wilson & Abramson, of Shreveport, for respondent.

FOURNET Justice.

This is a sequel to the case of In re Sherill, 204 La. 1096, 16 So.2d 885, wherein we denied Mrs. Virginia Paline Sherrill's application for a writ to prohibit the judge of the Juvenile Court of the City of Shreveport, Caddo Parish, because of his lack of jurisdiction, from proceeding with the case filed there by Mrs. Wilma Frey DeLaune charging that her granddaughter, Wilma Ann Sherrill, is a neglected child because no plea to the jurisdiction had either been filed in the inferior court by Mrs. Sherrill or passed on there. The matter is now before us for consideration on a writ of certiorari granted when Mrs. Sherrill called our attention to the fact that her plea to the juvenile court's jurisdiction, filed after our judgment in the former case became final and to which had been attached a certified copy of the proceedings in the Civil District Court for the Parish of Orleans awarding the custody of the minor to her, had been overruled and that a writ of prohibition should issue prohibiting the judge from proceeding further with the case.

In his written reasons for overruling Mrs. Sherrill's plea to his jurisdiction and in his response to the rule nisi issued for him to show cause why the relief sought by her should not be granted, the respondent judge, relying on the case of State v. Tomasella, 200 La. 60, 7 So.2d 615, takes the position that in passing on the plea to his jurisdiction he should only consider the allegations contained in the complaint filed by Mrs. DeLaune charging the minor with being a neglected child.

The record shows that the relator, when only a girl of 14, was persuaded to leave the high school she was attending in Baton Rouge with William M. Sherrill, 25, and go to Jefferson Parish where they were married. Of this union, one child, Wilma Ann was born in Charity Hospital in New Orleans on January 25, 1943. A few days later Sherrill's mother, Mrs. DeLaune, took her daughter-in-law and the baby to live with her in Shreveport and they were joined there by Sherrill. Shortly thereafter the relator and her husband, leaving the baby with Mrs. DeLaune, who agreed to care for the child, returned to New Orleans, where the husband was employed. On August 17, 1943, the relator and her husband were separated and she went to live with her people in Baton Rouge, instituting a proceeding for separation from bed and board against her husband in the Civil District Court for the Parish of Orleans on August 26. On the same day, by order of court, she was awarded the provisional care and custody of her minor daughter. On September 11 following, Mrs. DeLaune, who, despite this order of court, still retained the custody of the child, filed an affidavit in the Juvenile Court for the Parish of Caddo (where she resided) charging that the baby was a neglected child. This is the affidavit that forms the basis of the controversy in this case. On September 24, Sherrill excepted to the Civil District Court's jurisdiction over the minor and, on the same day, his mother, Mrs. DeLaune, intervened in the separation proceedings seeking to have the custody of the child awarded to her on the ground that it had been abandoned by the father and mother; that its temporary custody had been placed with her under an order issued by the Juvenile Court in Shreveport; and that the home she could offer the child was superior to that to which the mother intended taking it. After a trial on the merits, at which both Sherrill and Mrs. DeLaune appeared and testified, the judge of the Civil District Court rendered judgment on October 11, 1943, dismissing Sherrill's exception to his jurisdiction and the intervention of Mrs. DeLaune, specifically granting the minor's care and custody to her mother, Mrs. Sherrill, for the written reasons given. Sherrill and Mrs. DeLaune applied to this court for writs on October 23, 1943, and they were refused by us on October 25, 1943. See our docket, No. 37,340.

Up to this time no action had been taken on the complaint filed by Mrs. DeLaune in the Juvenile Court in Shreveport, but immediately after our refusal to grant these writs, the matter was fixed for trial, citation being mailed to the relator at her home in Baton Rouge ordering her to appear in the Juvenile Court on October 26, 1943. The relator, without appearing or pleading in that court, applied to this court for a writ of certiorari, which we granted in order that the validity of the proceedings in the Juvenile Court might be reviewed, but we refused to grant the writ prohibiting the juvenile judge from proceeding with a trial of the case after we reviewed it, adhering to the rule that this court will not issue a writ prohibiting a judge from proceeding with the trial of a case where no plea to his jurisdiction has been filed and overruled. In re Sherill, 204 La. 1096, 16 So.2d 885. The judgment in this case having become final, the relator, on April 14, 1944, filed an exception to the jurisdiction of the Juvenile Court, which was overruled on May 5, for the written reasons assigned. It was to review this ruling of the juvenile judge that we granted the writ of certiorari in this sequel.

The state legislature, by its Act No. 30 of 1924, acting within the contemplation of Section 52 of Article VII of the Constitution of 1921, created the office of Judge of the Juvenile Court for the Parish of Caddo (Section 1) granting such court, with the exception of capital crimes and assault with intent to commit rape, jurisdiction over 'the trial of all children under seventeen years of age who may be charged in said court as neglected or delinquent children, and of all persons charged with contributing to such neglect or delinquency, or with the violation of any law now in existence or hereinafter enacted for the protection of the physical, moral or mental well being of children, not punishable by death or hard labor, and also in all cases of desertion or non-support of children by either parent, and actions for divorce, separation from bed and board and annullment of marriages * * *.' Section 6. In Section 9 a 'neglected child' is defined as 'any child under seventeen years of age, not now, or hereafter, an inmate of a state institution, found destitute, or dependent upon the public for support, or without proper guardianship, or whose home, by reason of the neglect, cruelty, depravity or indigence of its parents, guardians, or other persons, is an unfit place for such child, or having a single surviving parent undergoing punishment for crime, or when found wandering about the streets or roads or anywhere at night, or wandering anywhere alone without being on any lawful business, or who, in the opinion of the court, is entitled to support or care by its parent or parents, where it appears that the parent or parents are failing or refusing to support or care for said child, or who habitually begs or receives alms, or who is found living in any house of ill fame or with any vicious or disreputable person or persons, or whose home, by reason of neglect, immorality or depravity on the part of its parent or parents, guardian or other person in whose care it may be, is an unfit place for such child, or whose environment is such or about whose custody a controversy may be such as to warrant the state, in the interest of the child, in assuming or determining its guardianship, or in determining what may be for the best interests of said child.' The act further provides that all proceedings against neglected or delinquent children shall be by affidavit (Section 11) and that appeals from the action of such court are direct to the Supreme Court but only on questions of law. Section 7.

The affidavit filed by Mrs. DeLaune in the Juvenile Court charges in effect that the affiant, a person of means and good repute, is now and has been since the child was 12 days old, in possession of the minor Wilma Ann Sherrill, the baby having been abandoned to her by its mother (paragraphs 1, 2, and 3); that the minor's mother resides in Baton Rouge with her parents, whose home is crowded and an unfit place for the child (paragraph 4); that the father of the child, her son, is not in a position to provide a fit place for the child other than the home of the affiant (paragraph 5); that the child's mother is seeking to secure possession of the child in a proceeding for a separation from her husband in the Civil District Court for the Parish of Orleans, which court has no jurisdiction over the child (paragraph 6); that because of the controversy between the father and mother over the custody of the child, the child's interests will be seriously affected (paragraph 7); that having failed to care for and support the child, its parents have abandoned it, the only purpose of the litigation instituted in Orleans Parish being to force concessions from the father of the child for the personal benefit of the child's mother (paragraph 8); that the mother is only a child of 16 (paragraph 9); and (paragraph 10) 'that the Court should assume the determination of the best interests of the said child, the said child being neglected within the meaning of the law of Louisiana.' (Italics ours.) Counsel for Mrs. DeLaune call our attention to the fact that the proceedings in the Juvenile Court are quasi criminal in nature and that since the affidavit filed by Mrs. DeLaune contains the allegation that the minor has been abandoned by its mother and its parents have failed and refused to support it or provide a fit home for it...