Leonard v. Willcox, 179.

Decision Date07 July 1928
Docket NumberNo. 179.,179.
Citation142 A. 762
CourtVermont Supreme Court

[Copyrighted material omitted.]

Original application for a writ of prohibition by Mabel C. Leonard against Julius A. Willcox, Superior Judge, and others. Writ granted.

Argued before WATSON, C. J., and POWERS, SLACK, MOULTON, and CHASE, JJ.

Edward L. Bates and Warren R. Austin, both of Burlington, for petitioner.

Walter S. Fenton, of Rutland, for respondent Willcox.

Collin M. Graves, of Bennington, Frank C. Archibald, of Manchester Center, and George L. Hunt, of Montpelier, for other respondents.

MOULTON, J. This is a petition for a writ of prohibition whereby it is sought to restrain Julius A. Willcox, one of the superior judges of this state, from taking jurisdiction of an application to change or modify an order, previously made, which affected the care and custody of a minor child.

The grounds upon which the writ is sought are, briefly stated: (1) That Judge Willcox has no jurisdiction over the subject-matter of the application; (2) that he has no jurisdiction over the person of the petitioner; (3) that he is disqualified by bias and incapable of giving the petitioner herein an impartial hearing.

Judge Willcox has appeared, but has filed no answer to the petition. The other respondents, who are John N. Leonard, the former husband of the petitioner, and Messrs. Collin M. Graves, Frank C. Archibald, and George L. Hunt, all counsel for John N. Leonard, have filed a joint answer, in which they say that Judge Willcox has jurisdiction of the subject-matter of the application, and of the person of the complainant, and is not disqualified by bias or prejudice.

In order properly to understand this rather complicated and unusual case, it will be necessary briefly to review the proceedings which have led up to it. They are as follows:

At the December term, 1922, of the Bennington county court, the petitioner herein, Mabel C. Leonard, obtained a divorce from John N. Leonard, and, as an incident to that divorce the custody of the minor child of the parties, Alexander Cooper Leonard, was decreed to the mother. In the decree were certain details providing for the father's right to see and receive visits from the child. In this respect the decree was based upon a stipulation entered into between the parties. At the December term, 1924, of Bennington county court, both parties brought petitions to the court for modification of this order and for the construction of certain words used in the decree. The original case was brought forward on the docket and after hearing both petitions the court declined to make the modifications requested. On October 19, 1926, John N. Leonard brought another petition for modification of the decree returnable to the December term, 1926, of the Bennington county court. Judge Willcox was the presiding judge at that term and the petition was heard at length. After a conference between Judge Willcox and the two assistant judges, the former prepared findings of fact. These findings were in favor of Mr. Leonard and expressed the conviction of Judge Willcox that Mrs. Leonard had not acted in good faith with regard to the decree, so far as it bore upon the privilege of Mr. Leonard to receive visits from the child, and that she had been influencing the mind of the child against his father. Copies of these findings were submitted to the assistant judges and were delivered to counsel for the respective parties, but after a further conference the assistant judges failed to agree with the conclusions of Judge Willcox, and as a result the findings were not signed. The December term adjourned on January 28, 1927, but thereafter on February 26, 1927, an order was prepared and signed by the full court expressly modifying certain of the provisions of the original decree as to the custody of the child and providing that it should remain in full force and effect until the 1st day of the following June and until the further order of the court. At the same time the case was entered, "Heard, and with the court for such further proceedings in the premises as the court may find necessary." One of the two assistant judges went out of office on the 1st day of February, 1927, but he joined in signing the order above mentioned. On May 12, 1927, Mrs. Leonard brought a motion to amend the original decree. This motion was preferred to the county court and Judge Willcox set it for hearing on the 26th day of May, 1927. On the 17th of May, after an interview with counsel for Mrs. Leonard, Judge Willcox signed an ex parte order, in which the remaining assistant judge joined, suspending the operation of the order of February 26, and making the same inoperative until further order of the court. On the 26th and 27th of May a hearing was had upon the motion; there being present Judge Willcox and Assistant Judge La Franchise. Here again after a conference the two judges failed to agree and no order was signed.

Judge Willcox at this time held to the same opinion which he had formed during the trial at the December term. The June term of Bennington county court opened on June 7, 1927, and another presiding judge took the place of Judge Willcox. On June 17, Judge Willcox sent the proposed findings of fact prepared by him after the hearings at the December term, and on May 26, and 27, to the clerk for filing. These papers were signed by Judge Willcox, but not by Judge La Franchise. On motion made during the June term on behalf of Mrs. Leonard these papers were expunged from the files. The case, which was the original petition for divorce brought forward on the docket, was entered, "Continued." After the adjournment of the June term John N. Leonard brought an application to Judge Willcox asking for modification of the original decree. At that time Judge Willcox signed an order setting the date for hearing on August 22 and providing that service should be made upon Mrs. Leonard, who was then spending the summer at Swampscott. Mass., by delivery of a copy of the petition and order to her at Swampscott by a certain indifferent person therein named, and also commanding her to have the minor child before Judge Willcox at the time and place of hearing.

At that hearing Mrs. Leonard appeared specially by her attorneys and by a motion to dismiss raised the question of Judge Will-cox's jurisdiction over the proceedings, over her person, and of his bias. The proceedings at this hearing will be later referred to. It is sufficient to state here that Judge Willcox, after first declining to take jurisdiction, later decided to do so, overruling the objections made by Mrs. Leonard, and that thereupon this petition for a writ of prohibition was brought.

The question of the disqualification of Judge Willcox was raised by a written motion to dismiss, which set forth all of the grounds now relied upon by the petitioner. The respondents say that this is not the proper method by which to raise the point, but that, since the question of bias is one of fact (State v. Jurras, 97 Vt. 276, 280, 122 A. 589), a plea in abatement is the appropriate procedure.

It is the general rule that courtesy to the judge requires an objection of this sort to be brought to his attention before recourse is had to a petition for a writ of prohibition. State ex rel. Poston v. District Court, 31 Wyo. 413, 227 P. 379, 35 A. L. R. 1082, and annotation; Board v. Holt, 54 W. Va. 167, 46 S. E. 134, 135. In the absence of statutory provision, the objection must be made promptly after it becomes known to the objector, or it is waived. Moses v. Julian, 45 N. H. 52, 84 Am. Dec. 114, 116; Crosby v. Blanchard, 7 Allen (Mass.) 385, 386; Bernhamer v. State, 123 Ind. 577, 24 N. E. 509, 510; Warren v. Glynn, 37 N. H. 340, 342-345.

The form and method of the objections in some jurisdictions is prescribed by rule of court (22 R. C. L. 28), the usual method being by affidavit. We have no regulation as to the matter. It has been held that a motion to dismiss is in the nature of an exception to the jurisdiction and properly raises the question (Richardson v. Welcome, 6 Cush. [Mass.] 331, 333), and that a petition, setting forth the facts, with a request to the judge not to sit, is appropriate (Moses v. Julian, 45 N. H. 52, 84 Am. Dec. 114). However, an objection in the lower court cannot be said to constitute a jurisdictional fact, which must appear before the petition for a writ of prohibition can be entertained. In proper cases the higher court will proceed without such objection having been made. Havemeyer v. Supreme Court, 84 Cal. 327, 24 P. 121, 10 L. R. A. 627, 644, 645, 18 Am. St. Rep. 192, and cases cited in note. 111 Am. St. Rep. 965, 966. The rule is not rigid and arbitrary, but one of discretion only. State v. Bright, 224 Mo. 514, 123 S. W. 1057, 135 Am. St. Rep. 552, 558, 559, 20 Ann. Cas. 955; Bice v. Boothsville Tel. Co., 62 W. Va. 521, 59 S. E. 501, 125 Am. St. Rep. 989, 13 Ann. Cas. 1046; Charleston v. Littlepage, 73 W. Va. 156, 80 S. E. 131, 51 L. R. A. (N. S.) 353, 355.

In Hemenway v. Hemenway, 65 Vt. 623, 624, 27 A. 609, it is said that divorce proceedings are in the nature of sessions proceedings, and not subject to the ordinary rules of pleadings and practice. Usually there are no pleadings except the libel, and the libel is not required to conform to the common-law rules in regard to declaration. No good reason is perceived why the same rule should not apply to vacation applications concerning the care and custody of minor children of divorced, or separated parents. We think that the question of the disqualification of the judge was sufficiently suggested by the motion.

As to the objections of want of jurisdiction over the proceeding itself, because unauthorized by statute, and because of insufficiency of service, the motion to dismiss was clearly appropriate, because these questions were raised by the record. Flory v. Plory's Estate, 98 Vt. 251,...

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