Slater v. Melton.

• Decision Date: 05 October 1937
• Docket Number: (No. 8617)
• Citation: 119 W.Va. 259
• Court: West Virginia Supreme Court
• Parties: Lula Pearl Slater v. Arnie Melton et al.

119 W.Va. 259

Lula Pearl Slater

v.Arnie Melton et al.

(No. 8617)

Supreme Court of Appeals of West Virginia.

Submitted September 22, 1937.

Decided October 5, 1937.

1. Infants

Under Code, 49-2-1, the court of common pleas of Kanawha County has juvenile jurisdiction. By virtue of the act creat- ing such court, jurisdiction, both of the subject matter and the person, shall be presumed in all proceedings had before it, unless the contrary plainly appears from the record. (Acts, Regular 1915 Session, Legislature, Chapter 109, Sec. 5).

2. Courts

The jurisdiction of a court of limited jurisdiction will not be presumed, unless the jurisdictional facts affirmatively appear from the record, but it is within the constitutional power of the legislature to change this rule.

3. Habeas Corpus

Where jurisdiction of a court of limited jurisdiction has been properly established, either by the recital in the record of the necessary jurisdictional facts, or by the aid of a presumption in favor of jurisdiction established by statute, its orders cannot be revised or altered by habeas corpus, and this applies to courts having juvenile jurisdiction under Chapter 49 of the Code. Habeas corpus cannot be used as a substitute for a writ of error or certiorari.

Kenna, President, absent.

Error to Circuit Court, Kanawha County.

Habeas corpus proceeding by Lula Pearl Slater against Arnie Melton and wife. To review a judgment for petitioner, defendants bring error.

Reversed; writ discharged.

John T. Copenhaver and L. Steele Trotter, for plaintiffs in error.

Lillian S. Robertson, for defendant in error.

Riley, Judge:

This is a proceeding in habeas corpus brought in the circuit court of Kanawha county by Lula Pearl Slater, unmarried, petitioner, for the purpose of obtaining the custody of her illegitimate child, Dorcas May Slater, claimed to be unlawfully withheld by the respondents, Arnie Melton and wife. To a judgment granting the relief prayed, the respondents prosecute this writ of error.

In response to the writ of habeas corpus, the Meltons appeared in the circuit court and filed a plea in abatement, alleging that on October 24, 1936, they had been impleaded in the juvenile court (court of common pleas) of Kanawha county and were awarded, the custody and control of the infant child; that the judgment making the award was still in force and effect, and the jurisdiction of that court continuing. A demurrer to the plea in abatement having been sustained, they then filed an answer which charged that the child was given to them with the understanding that they be vested with absolute custody and control, and with the right to keep it; that the said Lula Pearl Slater and one Eads, the child's father, theretofore had petitioned the juvenile court for its return and after a hearing, the child, by an order, set out in the answer in haec verba, was declared to be dependent and the custody awarded the Meltons.

No part of the record in the juvenile court other than the order set forth in the answer was introduced in this proceeding at the hearing before the circuit court. This order reads as follows:

"This 24th day of October, 1936, came Thos. D. Robertson, Chief Probation Officer, and A. C. Kiser, and Mrs. Edna Whitehurst, Assistant Probation Officer. Came also Dr. J. E. Roberts, Mr. A. H. Melton, J. A. Eads, and Miss Lulu Slater.

"It appearing to the court after due consideration, that said Dorcas May (Slater) Eads is a dependent child within the meaning of the law; that she was born out of wedlock; that her mother has no way of supporting her; that said Dorcas May (Slater) Eads has been in the home of Mr. and Mrs. A. H. Melton since she was eleven days old; and Mr. and Mrs. Melton are willing and anxious to keep her.

"It is hereby ordered that said Dorcas May (Slater) Eads be and she is given into the care and custody of Mr. and Mrs. A. H. Melton, and that the mother of said child is not to molest her in any way.

"The Clerk of the Court shall deliver a certified copy of this order to Mr. and Mrs. A. H. Melton."

The juvenile court of Kanawha County, referred to in the Meltons' answer, is, in law and in fact, simply a branch in the activities of the court of common pleas of that county under Code 49-2-1. This provision delegates to the circuit courts original juvenile jurisdiction, except in counties where a domestic relations court, or where a common pleas or intermediate court having equitable jurisdiction, has been or may be created, and if there be no such court but there be a criminal court, such jurisdiction is delegated to such inferior courts. The court of common pleas of Kanawha County, under Acts 1915, West Virginia Legislature, Regular Session, Chapter 109, creating it, is a court of limited jurisdiction vested with chancery powers. It therefore has original jurisdiction in juvenile matters.

It is well settled in this state that the writ of habeas corpus cannot be invoked to supply the place of a writ of error. To use it to revise or alter an order of a court having competent jurisdiction clearly is an abuse of the writ. Ex Parte Mooney, 26 W. Va. 36, 53 Am. Rep. 59; Ex Parte Evans, 42 W. Va. 242, 24 S. E. 888; Ex Parte Beavers, 80 W. Va. 34, 91 S. E. 1076; Ex Parte Veltri, 83 W. Va. 226, 98 S. E. 146; 1 Cooley's Constitutional Limitations (8th Ed.), 723-24-25.

In view of this well established...