State ex. rel. Courtin v. Browne
| Decision Date | 29 November 1920 |
| Docket Number | 24180 |
| Citation | 148 La. 395,87 So. 21 |
| Court | Louisiana Supreme Court |
| Parties | STATE ex. rel. COURTIN v. BROWNE et ux. In re BROWNE et ux |
Writ of prohibition made perpetual, and plea to the jurisdiction of the trial court sustained, with order that the habeas corpus proceeding be dismissed.
James D. Hill and W. O. Hart, both of New Orleans, for petitioners.
O'NIELL J.
The complainants in this proceeding have invoked our supervisory jurisdiction to prevent the judge of division E of the civil district court for the parish of Orleans from proceeding summarily to take from them their infant granddaughter by a writ of habeas corpus. The child is only a few months old, having been born on the 2d of May, 1920. Her mother, daughter of the defendants herein, died two days after the child was born. A suit instituted by the husband Robert E. Courtin, for separation from bed and board, in which the wife had reconvened and prayed also for a separation from bed and board, was pending at the time of her death. The district judge had assigned her to the residence of her parents, as her temporary domicile, and her child was born there, and has remained there ever since, under the care of the grandparents.
The child was only a month and three weeks old when this habeas corpus suit was filed. It is not an ordinary suit for possession of the child, but is strictly and technically a habeas corpus proceeding, instituted in the name of the state of Louisiana.
The defendants filed exceptions to the suit, substantially, as follows, viz.:
(1) That the allegations of the petition were all in one paragraph, instead of being each in a separate paragraph or article, as required by Act No. 300 of 1914.
(2) That the allegations of the petition disclosed only a case for an ordinary proceeding to obtain possession of the child and not a summary proceeding by habeas corpus, in the name of the state, in which latter case, defendants contend, the Supreme Court would not have appellate jurisdiction.
(3) That the civil district court for the parish of Orleans had not jurisdiction or authority to issue a writ of habeas corpus.
(4) That, in an ordinary suit for possession of a child, the defendants would be entitled to the benefit of the ordinary delays for answering, and the right to a trial by jury, which rights are denied in the summary proceeding by writ of habeas corpus.
(5) That the relator in the habeas corpus proceeding had not qualified as tutor of the child, and was therefore not entitled to have possession of her.
The judge overruled all of the exceptions to the petition, and denied the defendants a right to a trial by jury. Whereupon the defendants, having given notice to the judge and to the relator in the habeas corpus proceeding, filed their petition in this court for a writ of prohibition to prevent the judge from proceeding to try the case, or, in the alternative, for a writ of mandamus to compel the judge to allow a trial by jury.
The fact that the relator in the habeas corpus suit made no attempt whatever to comply with the Act No. 300 of 1914, p. 611, is of little or no importance, compared with the question of jurisdiction of the civil district court for the parish of Orleans to entertain the suit in the manner in which it was brought. Although the allegations of the petition for habeas corpus disclosed only a case for an ordinary proceeding by a father to obtain possession of his infant child, the suit was not brought in the name of the father, and no relief was prayed for in his behalf. The suit was strictly and technically a habeas corpus proceeding, instituted in the name only of the state of Louisiana; as is shown by the petition, which we reproduce literally, viz.:
Articles 786 and 787 of the Code of Practice declare that the power of the courts to issue the writ of habeas corpus is to be "exercised in a summary manner, without going through the ordinary forms of action." Article 791 of the Code defines the writ of habeas corpus as an order in writing, issued in the name of the state, by a judge of competent jurisdiction, and directed to a person who has another in his custody, or detains him in confinement, commanding him to bring before the judge the person thus detained, at the time and place appointed, and to state the reasons for which he thus keeps him imprisoned and deprived of liberty.
In the Constitution of Louisiana, the jurisdiction or power to issue the writ of habeas corpus is dealt with as a special authority or prerogative which is not included in the general authority conferred upon the courts to issue all such writs, process, and orders as may be necessary for the exercise of the jurisdiction expressly conferred.
Article 93 of the Constitution declares that the Supreme Court, and each of the justices thereof, shall have power to issue the writ of habeas corpus, at the instance of any person in actual custody, in any case where this court may have appellate jurisdiction.
Article 104 of the Constitution declares that the courts of appeal and...
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