Pullen v. Pullen
| Decision Date | 31 May 1926 |
| Docket Number | 27926 |
| Citation | 109 So. 400,161 La. 721 |
| Court | Louisiana Supreme Court |
| Parties | PULLEN v. PULLEN |
Rehearing Denied June 28, 1926.
Suit for divorce by Mrs. Clarisse L. Pullen against D. B. Pullen in which plaintiff brought proceeding to modify decree. Plea to the jurisdiction was sustained, and plaintiff applies for writs of certiorari and mandamus to compel the Judge of the District Court of the Parish of De Soto to exercise jurisdiction. Rule made absolute, and suit ordered reinstated on the docket of the district court.
Crow & Coleman, of Shreveport, for relator.
Craig Bolin & Magee, of Mansfield, for respondent.
O'NIELL, C. J.
This is a proceeding by mandamus to compel the judge of the district court for the parish of De Soto to exercise jurisdiction over a proceeding brought by the relatrix to modify a decree awarding the custody of three of her five minor children to their father, in a judgment of divorce, which she obtained against him two years ago.
In her suit for divorce, on statutory grounds, the plaintiff prayed for the care and custody of the five children. averring that, for reasons which she stated, she was entitled thereto. In his answer to the suit the defendant admitted that every allegation of the plaintiff's petition was true. Judgment was rendered on the pleadings; but, without giving any reason why the plaintiff should not have the custody of all of the children, the court gave her the custody of only two of them, and gave the defendant the custody of three, a boy 16 years of age, a boy 11, and a girl 7 years of age. The defendant moved to New Orleans, and established his residence and domicile there soon after the decree of divorce was rendered. The plaintiff remained at the matrimonial domicile in De Soto parish, and within the jurisdiction of the court that had granted the divorce, and has resided there ever since.
Two years after the decree was rendered, the plaintiff brought this proceeding, under .the title and docket number of the original suit, to modify the decree so ns to give her the parental authority over the boy who is now about 13 years of age and the girl, who is now about 9. She averred that the two children, and the two who were left In her custody by the court's decree, had remained with her and under her care and custody over since the divorce was granted; and that the father, after two years of neglect to take charge of or to provide for the two younger children, whose care and custody was in-trusted to him by the court's decree, was then threatening to take them away from her. She made other allegations which, if true, would warrant an amendment of the decree so as to give her the parental authority that she claims.
The defendant pleaded that the district court for the parish of De Soto had not jurisdiction of the case, ratione personae et ratione materiae. The judge sustained the plea, and dismissed, the suit After applying for a new trial, and after notifying the court and the defendant in the suit, the plaintiff filed this application for writs of certiorari and mandamus.
The respondents ask that the rule which we issued be recalled because the plaintiff had the right to appeal from the judgment complained of. It is contended that, according to articles 845, 857, and 858 of the Code of Practice, we have no authority to issue a writ of certiorari or prohibition except to prevent another court from proceeding irregularly or beyond its jurisdiction, and then only when the complainant has no right of appeal.
Article 831 of the Code of Practice declares that the court may, in its discretion, issue" a writ of mandamus in a case where the complainant has other means of relief, if the slowness of the ordinary forms of law might result in a denial of justice. In such case, the authority to issue a writ of certiorari, as an ancillary proceeding, cannot be denied. In that respect, at least, the articles of the Code of Practice, relied upon by the respondents, were superseded by article 90 of the Constitution of 1870, retained as article 94 in the Constitution of 1898 and of 1913, and as the first paragraph of section...
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