Scott v. Wheeler

• Decision Date: 09 April 1915
• Docket Number: 30228
• Citation: 151 N.W. 1100,170 Iowa 99
• Parties: CHARLES A. SCOTT, Plaintiff, v. O. D. WHEELER, Judge, Defendant
• Court: Iowa Supreme Court

151 N.W. 1100

170 Iowa 99

CHARLES A. SCOTT, Plaintiff, v. O. D. WHEELER, Judge, Defendant

No. 30228

Supreme Court of Iowa, Des Moines

April 9, 1915

Certiorari from Pottawattamie District Court.--HON. O. D WHEELER, Judge.

THIS is a certiorari proceeding brought to test the legality of an order of the court of Pottawattamie County in a certain divorce proceeding pending in such court and is in the nature of an appeal from such order.

Affirmed.

Tinley Mitchell & Pryor, for plaintiff.

Kimball & Peterson, for defendants.

EVANS, J. DEEMER, C. J., LADD and PRESTON, JJ., concur.

OPINION

EVANS, J.

On September 30, 1913, a decree of divorce was entered in favor of the plaintiff in the case of Maggie Scott v. Charles A Scott. The decree awarded the plaintiff the custody of the minor child, Melvin. On October 22nd following, the defendant filed a motion to modify the decree by striking therefrom the provision as to the custody of the child. Notice of this application was served on plaintiff's attorneys. On November 29th, the plaintiff's attorneys consented that the provision might be eliminated. On February 5, 1914, the plaintiff, Maggie L. Scott, filed her motion in said case, asking that she be awarded the care and custody of the child. Resistance was filed by the defendant, Charles A. Scott. On this motion and resistance, a hearing was had on June 25th, resulting in an order awarding the custody to the defendant, Charles A. Scott. On the same day, application was made that the order be superseded, pending appeal to this court. This application was granted, a bond being required of the plaintiff that she would keep the child within the jurisdiction of the court and perform the final judgment of the district court and this court. The plaintiff in such case is a resident of Pottawattamie County, and the defendant, a resident of Missouri. The motion for the modification of the decree was heard by Judge Arthur and the order was made by him. The application to supersede was made on the same day, but after the departure of the trial judge from the city. Thereupon Judge Wheeler, of the same court, took cognizance of the matter by agreement of all parties. We think, therefore, that the question should be considered here in the same light as though Judge Wheeler had been the trial judge who entered the order thus superseded. The argument for the appellant is that the proceeding was analogous to a habeas corpus proceeding and that the order entered therein could not, therefore, be superseded. The argument has its plausibility. We think, however, that it would not do to apply to a divorce action the rules that obtain in a habeas corpus proceeding. The question of the custody of minor children is necessarily incident to the determination of a divorce action. In such case, the court exercises a somewhat broader jurisdiction than in a habeas corpus proceeding, which theoretically involves only the legality of the present detention. The habeas corpus proceeding is a summary proceeding. Under the statute, a plaintiff therein is entitled to an immediate discharge "if no sufficient legal cause of detention is shown." Code Sec. 4452. In such case, we have held that to permit such an order to...