Larson v. Dutton
Decision Date | 25 July 1918 |
Citation | 168 N.W. 625,40 N.D. 230 |
Parties | LARSON v. DUTTON et ux. |
Court | North Dakota Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
A judgment or order quashing a writ of habeas corpus and awarding the possession and custody of a minor child to one of the contending parties is a “final” order or judgment affecting substantial rights which is made in a special proceeding and is appealable under the provisions of section 7841 of the Compiled Laws of 1913.
Action by Anna Bockwold Larson against Frank Dutton and wife. From a judgment quashing a writ of habeas corpus and awarding the custody of a minor child to defendants, plaintiff appeals. On motion to dismiss. Motion denied.
Birdzell, J., dissenting.Wade A. Beardsley, of Wilton, and E. T. Burke, of Bismarck, for plaintiff. Newton, Dullam & Young, of Bismarck, for defendants.
This is a motion to dismiss an appeal taken from a judgment of the district court, quashing a writ of habeas corpus and awarding to the defendants the custody and possession of a minor child. The motion to dismiss is made on the theory that the judgment or order is not appealable.
The statutes of North Dakota in relation to appeals are as follows:
We have no doubt that the judgment was appealable. We are, however, also of the opinion that, though the order or judgment was as to the particular facts in controversy a final order and appealable, in all of such cases the welfare of the child is the primary consideration, and, “the order in such a case is not an unalterable final judgment, but will last only as long as no material change of circumstances requires a change of custody.” Knapp v. Tolan, 26 N. D. 23, 142 N. W. 915, 49 L. R. A. (N. S.) 83.
That the order or judgment is appealable is to us the inevitable result of our prior decision in Knapp v. Tolan, supra. In the case of Knapp v. Tolan, supra, we held that:
“Where the writ of habeas corpus is used, not as a writ of liberty in the strict and original sense of the term, but only indirectly and theoretically as such and as a means for inquiring into and determining the rights of conflicting claimants to the care and custody of a minor child, the doctrine of res judicata will apply; and, where no material change of circumstances is shown to have arisen since the determination of a prior proceeding in habeas corpus which has been adjudicated in a court of competent jurisdiction, the writ will not be granted by another court as a matter of right.”
It follows as a result of such a rule that, since the judgment rendered upon the facts existing at the time of the trial is binding and conclusive and bars a subsequent proceeding by the parties thereto upon the same facts, the order made thereon is a final order, so far as the facts existing at the time of the institution of the case and trial are involved; and that such an order is final within the meaning of the statute for the purpose of review. Jamison v. Gilbert, 38 Okl. 751, 135 Pac. 342, 47 L. R. A. (N. S.) 1133;Cormack v. Marshall, 211 Ill. 519, 71 N. E. 1077, 67 L. R. A. 787, 1 Ann. Cas. 256;Bleakley v. Smart, 74 Kan. 476, 87 Pac. 76, 11 Ann. Cas. 125;Hall v. Whipple (Tex. Civ. App.) 145 S. W. 308, 12 R. C. L. 1258.
Even though the trial court upon proper motion and upon a new showing of facts may make other orders regarding the custody of the child, and even though the judgment of this court will not preclude any such motion or proceeding, if the welfare of the child demands it, such a possibility ought not and will not deprive the appellant of his right to have the action of the trial court reviewed. Hall v. Whipple, supra.
The motion to dismiss the appeal is denied, with $15 costs to the appellant.
Under the laws of this state:
“Every person imprisoned or restrained of his liberty under any pretense whatever, may prosecute a writ of habeas corpus to inquire into the cause of such imprisonment or restraint, and thereby (except in the cases specified in the next section) obtain relief from such imprisonment or restraint if it is unlawful.” Section 11359, C. L. 1913.
It has been said that this latter section is an innovation, and intended as an innovation, upon the old practice. Carruth v. Taylor, 8 N. D. 180, 77 N. W. 624. Neither can a party come to the Supreme Court in the first instance as a matter of course. 8 N. D. 180, 77 N....
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...In re Wagner, 84 N.W.2d 587, 588 (N.D.1957); Raymond v. Geving, 74 N.D. 142, 147, 20 N.W.2d 335, 337 (1945); Larson v. Dutton, 40 N.D. 230, 232-233, 168 N.W. 625, 626 (1918).3 Section 32-22-04, N.D.C.C., is the current codification of the habeas corpus venue provision.4 Section 29-32-02 is ......
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