Shaw v. Mchenry
| Decision Date | 25 October 1879 |
| Citation | 2 N.W. 1096,52 Iowa 182 |
| Parties | SHAW v. MCHENRY |
| Court | Iowa Supreme Court |
THIS is an original proceeding in this court. The petition was presented to one of the judges, who ordered that a writ of certiorari issue directed to the defendant, to certify certain records and proceeding to this court, to the end they might be reviewed as provided by law. The defendant having made his return, the questions involved are stated in the opinion.
Order set aside and annulled, and Florence Shaw paid the costs.
Maxwell & Witter, for plaintiff.
Smith & Baylies, for defendant.
In 1876 the plaintiff brought an action in the District Court of Polk county, in the fifth judicial district, for a divorce from his wife, Florence Shaw, and to obtain the custody of their only child, Lillian M. Shaw. The relief asked was granted and a decree accordingly entered in December, 1876. Having custody of said Lillian under the decree the plaintiff placed her in the custody and in the care of John Montgomery.
In June, 1878, the said Lillian, being then about eight years old, by her next friend and father (the plaintiff herein) presented a petition to the Hon. John Mitchell, judge of the first circuit of the fifth judicial district, in which it was alleged the said Lillian was "restrained of her liberty" by said John Montgomery. In accordance with the prayer of the petition a writ of habeas corpus was issued by said judge. Montgomery made a return to the writ and it was found and determined by said judge that said Lillian was "restrained of her liberty" by said Montgomery. Webster Mains, of Mills county, was appointed her special guardian, and she was awarded to his care and custody. The order made by said judge directed the sheriff to deliver said Lillian to said special guardian. This order was not executed, because "Mrs. Eliza Montgomery kidnapped said child and carried her away to another state, and there kept her domiciled until an indictment had been found against her for said crime, when she and said Lillian were brought to Polk county in charge of an officer." At what time this occurred does not appear.
On the 16th day of December, 1878, the said circuit judge made an order that the sheriff proceed to execute the order previously made by him, which is hereinbefore mentioned.
On the second day of January, 1879, Florence Shaw presented a petition to the defendant, as judge of the District Court, in which she prayed the following relief: "That John W Shaw may be required to answer this her petition, and upon the hearing of the same the custody of said Lillian M. Shaw may be awarded to defendant (Florence Shaw), and she further prays that during the pendency of this proceeding said Lillian M. Shaw may be placed in the custody of some suitable person, to be held and kept within Polk county, Iowa until the further order of this court, and that the sheriff of Polk county may be restrained from removing her out of said county." On the same day the defendant, as judge of said District Court, made the following order in the premises: "It is therefore ordered by me that upon the filing by Ella Holmes of a bond with the clerk of the District Court of Polk county, conditioned in the sum of three hundred dollars that she will take said child into her custody, and keep her within Polk county, Iowa and obey the further order of this court with reference to said child, with sufficient surety to be approved by said clerk, then that the sheriff of Polk county shall deliver said Lillian M. Shaw to said Ella Holmes."
The legality of this order is the question to be determined in this proceeding, and in reference thereto we have to say:
I. The writ of habeas corpus is a writ of right guaranteed by the Constitution, Art. 1, Sec. 13. It issues in behalf of any one who is illegally restrained of his liberty, and may be allowed by the Supreme, District or Circuit Court, or any judge thereof. Penalties are imposed on any judge who "wrongfully and willfully" refuses the writ when properly applied for. Code, Secs. 3449, 3451, 3457. The only limitations are, an application for the writ must be made to the most convenient judge, and it may be disallowed if from the showing made by the petitioner the court or judge is of opinion he is not entitled to any relief whatever. Code, Secs. 3452, 3453.
It is not claimed, and it could not be successfully, that the allegations of the petition were not sufficient to authorize and require the circuit judge to issue the writ. The contrary clearly appears. This being true, said judge had jurisdiction of the parties, and the subject-matter. It follows that the order made by said judge was not void, but voidable at most, and could only be reviewed, reversed or changed in a direct proceeding by appeal or some other proceeding known to the law. As long as it remained in force it was entitled to full faith and credit. It could not be reversed, set aside or evaded in a collateral proceeding by any other court or judge.
II. It is insisted that said order only remained in force during the vacation of the Circuit...
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