Miles v. Miles

• Citation: 71 So. 295,111 Miss. 110
• Decision Date: 03 April 1916
• Docket Number: 17303
• Court: United States State Supreme Court of Mississippi
• Parties: MILES v. MILES

71 So. 295

111 Miss. 110

MILES v. MILES

No. 17303

Supreme Court of Mississippi

April 3, 1916

APPEAL from the chancery court of Lauderdale county, HON. SAM WHITMAN, Jr., Chancellor.

Habeas corpus by Alex P. Miles against his wife, Lula Miles, for the custody of their infant child. Judgment for petition and defendant appeals.

The facts are fully stated in the opinion of the court.

Decree reversed.

S. M Graham, for appellant.

F. K Ethridge and Scott & Christian, for appellee.

OPINION

COOK, P. J.

The appellant, Mrs. Lula Miles, filed a bill for divorce from her husband, Alex P. Miles. The chancellor denied the relief sought, and dismissed the bill. From this decree, no appeal was prosecuted.

After the divorce bill was dismissed the husband, Alex P. Miles immediately instituted habeas corpus proceedings against his wife, Lula Miles, for the custody of their child then about ten months of age. The chancellor heard the evidence, and entered judgment awarding the custody of the child to its father. From this judgment, the mother prosecutes this appeal.

To make clear the views of the chancellor, we here copy his statement made before he entered his judgment, viz:

"If the divorce and alimony suit had proceeded to a final hearing on the merits, and the testimony therein had been such as to convince me that the complainant was entitled to a divorce, then and in that event I would without hesitation have awarded the custody of the child to its mother. But my holding, from all the evidence in that case, was that the wife, without legal cause to do so, had left her husband in the state of Louisiana, where they both then had and now have their legal domicile, and since the hearing on habeas corpus involves only the question as to who is properly and legally entitled to the custody of the child, and since the court in such hearings sits not as a court of equity, and has no power or authority to retain jurisdiction of the cause or to alter or modify its decree, but that, the habeas corpus decree, when rendered, being final, the only thing the court can do is to make the award and make it permanent according to all the evidence in the case.

"If counsel can produce any authority holding that on habeas corpus hearing of this character the temporary custody of the child can be granted, jurisdiction of the cause retained, and such order afterwards altered or modified, if deemed proper, then I shall be glad to hear the authorities, but I feel that no such authority can be produced, and that the award must be in its very nature final, for that, when a habeas corpus court has disposed of a particular matter before it and adjourns, it has no power to reconvene for the purpose of reopening such matter.

"The court finds from...