Rallihan v. Gordon, Judge

• Decision Date: 19 June 1917
• Citation: 176 Ky. 471
• Parties: Rallihan, et al. v. Gordon, Judge.
• Court: Kentucky Court of Appeals

Page 471

176 Ky. 471

Rallihan, et al. v. Gordon, Judge.

Court of Appeals of Kentucky.

Decided June 19, 1917.

Petition for Writ of Prohibition.

BENNETT H. YOUNG, MARION W. RIPY and HARDIN H. HERR for petitioners.

J. S. LAURENT and BEN F. WASHER for respondent.

OPINION OF THE COURT BY JUDGE CARROLL — Denying writ of prohibition.

On May 29, 1917, the Hon. Thomas R. Gordon, one of the judges of the Jefferson circuit court, on application, made to him by Robert T. Motschmann, the father of Mary Motschmann, in the manner and form required by section 399 of the Criminal Code, issued, as he was obliged to do under the mandatory provisions of the code, a writ of habeas corpus against the Detention Home of the Juvenile Court, the Board of Children's Guardians, and Mary L. White, matron of the home, commanding them to produce the body of Mary Motschmann, a girl about 13 years of age, before him as judge at a time and place mentioned in the writ. Immediately upon the issual of the writ by Judge Gordon, Mary Rallihan, the grandmother of the child, in her own name and as next friend, and Mary Motschmann, filed their petition in this court, asking that a writ of prohibition be issued against Judge Gordon "prohibiting him from proceeding in any way to take the petitioner, Mary Motschmann, from the custody of the Detention Home, the Board of Children's Guardians, and Mary L. White, and the juvenile branch of the Jefferson circuit court, and from issuing any order, proceeding or mandate, judgment or command whereby the child, Mary Motschmann, will be taken out of the state of Kentucky or out of the jurisdiction of the courts of said state or surrendered or delivered to the custody of Robert T. Motschmann, the father of said child, or taken from the care or custody of her grandparents."

For response to this motion Judge Gordon set out "that on May 29, 1917, another petition for a writ of habeas corpus was filed involving the person of the said Mary R. Motschmann, said proceeding being No. 101910 in the Jefferson circuit court. He states that pursuant to said petition he, as judge of the Jefferson circuit court, Common Pleas Branch, Second Division, issued a writ of habeas corpus on May 29, 1917, directing the Board of Children's Guardians, the Detention Home, and Mary R. White, matron of said home, to produce the body of the said Mary R. Motschmann before the judge of the Jefferson circuit court, Common Pleas Branch, Second Division, on the 29th day of May, 1917, at the hour of four o'clock p. m.

"He states that in response to said writ the Board of Children's Guardians, the Detention Home, and Mary R. White, produced the body of said child at the time and place mentioned in said writ, and in addition thereto filed their joint response in which they claimed the right to retain the custody of said child under and by virtue of proceedings theretofore had in the juvenile court in the Jefferson county court. That the issue thus presented by the response aforesaid related to the jurisdiction of the juvenile court of Jefferson county, and this defendant at the time and place mentioned was proceeding to hear and determine said issue when notified of the temporary restraining order issued by this court in this cause.

"He states that the sole question presented to this defendant for decision was whether or not the juvenile court had jurisdiction or had acquired jurisdiction in the proceeding which had been instituted before it, and that as to this question the defendant had neither formed nor expressed any opinion or decision, and had been afforded no opportunity of either hearing the case then presented or reaching any conclusion with respect to the rights of parties therein; that at no time did this defendant give any intimation of any opinion held or to be held by him on the issue presented, and accordingly he denies that by reason of the former action he would have delivered the custody of said child into the custody of said Robert T. Motschmann."

Although it has no direct relation to the present proceeding, it may be said in passing that on May 22nd, on the petition of Robert T. Motschmann, a writ of habeas corpus was issued by the Hon. William H. Field, one of the judges of the Jefferson circuit court, commanding Mary Rallihan to produce in court the body of Mary Motschmann on May 25, and at the request of Judge Field the hearing of the application was transferred to the branch of the court presided over by Judge Gordon, and when the application came up for hearing, Mary Rallihan filed her response. After hearing the evidence and argument of counsel, Judge Gordon entered an order adjudging the custody of the infant to her father, ...