Rizo v. Burruel

• Decision Date: 10 December 1921
• Docket Number: Civil 1921
• Citation: 202 P. 234,23 Ariz. 137
• Parties: EPIGMENIO RIZO, Appellant, v. PASTOR BURRUEL and FRANCISCA BURRUEL, His Wife, Appellees
• Court: Arizona Supreme Court

202 P. 234

23 Ariz. 137

EPIGMENIO RIZO, Appellant, v. PASTOR BURRUEL and FRANCISCA BURRUEL, His Wife, Appellees

Civil No. 1921

Supreme Court of Arizona

December 10, 1921

APPEAL from a judgment of the Superior Court of the County of Yuma. Fred L. Ingraham, Judge. Affirmed.

Mr Glenn Copple, for Appellant.

Mr. D A. Fraser and Mr. Earl Anderson, for Appellees.

OPINION

ROSS, C. J.

The controversy is over the custody of one Julia Fidencia Rizo, a female child about eight years old. The rival claimants are the father, Epigmenio Rizo, and Pastor Burruel and Francisca Burruel, in whose care the child has been since 1915. In January, 1921, the father, who is the appellant here instituted in the superior court of Yuma county habeas corpus proceedings to recover the possession of Julia from appellee Pastor Burruel. In his petition he bases his right to the custody of the child on the ground that he is her father, and alleges that he has requested Pastor Burruel, an unfit person to have her care, to let him take the child, but that the request has been refused, and the child is unlawfully detained and restrained of her liberty. Pastor, in his return to the writ, alleges that in 1914 he and his wife, the other appellee, came into the possession of the child, she having been deserted and abandoned by her father, and ever since that date he and his wife have maintained and supported the child, and provided her with the necessities of life. He alleges that the father is unfit to have the care and custody of the child, and asserts his willingness, readiness, and ability competently to care for, educate and support the child, and that it will be to her best interests to be left in their care and control. On the date set for the hearing of the application for a writ of habeas corpus the appellees filed in the same court their petition for leave to adopt Julia Fidencia Rizo, and in said petition alleged that in 1914, Julia Fidencia Rizo was abandoned by her father and delivered into the care and custody of the petitioners, husband and wife, who were then, and for a long time prior thereto had been, actual, continuous, and bona fide residents of Yuma county, Arizona; allege that said child at the time she came into their care was the age of three years, and needed care and attention; that the father and all of the relatives of the said child had willfully deserted her, neglected to provide proper care and maintenance for her, and that said desertion and failure to provide had continued since 1914.

The hearing upon the application for the writ and the petition for leave to adopt came on to be heard on February 15, 1921, and upon an order of the court the cases were consolidated and heard together. On the fifteenth day of February the appellant filed his plea in abatement to the petition to adopt, in which he set up that he was a citizen of the Republic of Mexico and that he had appeared before the superior court of Yuma county, Arizona, for the sole and only purpose of determining a writ of habeas corpus for the possession of his child, and that, while present in said court, he was served with petition for adoption. He further alleges that the minor child, Julia, and the petitioners are citizens of Mexico, and prays that the petition be dismissed for those reasons. This plea in abatement was the only pleading filed by the appellant. No answer was made to the petition to adopt. The plea in abatement was overruled. A trial was had before the court. An order and decree of adoption as prayed for by appellees was made and entered, and the writ of habeas corpus was denied. The father appeals from both judgments. The first error assigned is the order of the court overruling the appellant's plea in abatement. It is said that the appellant, being a citizen of Mexico, and having come to Yuma county for the sole purpose of prosecuting a writ of habeas corpus for the possession of his child, could not be, against his consent, made a party defendant in another action. In a very recent case this immunity from being sued is stated as follows, quoting from the syllabus:

"Suitors, whether plaintiff or defendant, from a foreign jurisdiction are exempt from the service of civil process while attending court and for such reasonable time before and after trial as may enable them to go from and return to their homes." Sofge v. Lowe, 131 Tenn. 626, L.R.A. 1916A, 734, 176 S.W. 106.

The reason for the adoption of this rule is based upon grounds of public policy, and relates, as the above court has said --

"to a matter of supreme importance -- the administration of justice. In order that causes may be fully heard and a just result reached, and that an orderly and unhampered administration of justice may be assured, the law has announced the rule of exemption. If parties to a pending case, or their witnesses, are liable to be thus sued, they may be intimidated and prevented from complying with the foreign court's mandate, if actually summoned or subpoenaed, or from attending voluntarily, as is their privilege. It is against public policy to permit them to be deterred by fear of being subjected to suit while attending, or so going or returning."

While most of the courts have been careful to protect foreign litigants in the matter of their privilege to claim immunity from being sued generally, we think that no case will be found that would limit the adversary party to the particular method of presenting the question involved selected by such foreign litigant. In the present case, for instance, the question involved is the status of the infant child, Julia, and we cannot see wherein the privileges or immunities of the father have been invaded, whether that status is determined in the application for writ of habeas corpus or in the petition for leave to adopt. Practically the same question is involved in both cases. In Livengood v. Ball, 63 Okl. 93, L.R.A. 1917C, 905, 162 P. 768, it was held that nonresident plaintiffs who voluntarily brought an action in the courts of Oklahoma against a citizen thereof were not exempt from service of summons in an action by the defendants seeking relief connected with the subject of the litigation commenced by them. In Tiedemann v. Tiedemann, 35 Nev. 259, 129 P. 313, the court held that immunity from being sued could not be claimed by a nonresident "when within the jurisdiction on matters affecting the same correlated subject matter, and the action is brought in good faith and calls for the adjudication of substantial rights." The facts in that case were that the father, a resident of Connecticut, had applied to the courts of Nevada to obtain the possession of his minor child from its mother. His petition being denied, the mother thereupon brought suit for divorce, asking for the custody of the child and a division of property.

Some of the courts have gone so far as to hold that the rule of immunity from being sued does not apply to a nonresident plaintiff who voluntarily goes into a state and brings suit...