State ex rel. Emory v. Porterfield
| Decision Date | 06 November 1922 |
| Citation | 244 S.W. 966,211 Mo.App. 499 |
| Parties | STATE ex rel. WEBER J. EMORY, Relator, v. EDWARD E. PORTERFIELD, Judge, Respondent |
| Court | Kansas Court of Appeals |
WRIT MADE ABSOLUTE.
J. P Jackson for relator.
W. B Brown, Assistant Prosecuting Attorney, for respondent.
ORIGINAL PROCEEDING IN PROHIBITION.
This is an original proceeding in prohibition. Respondent is Judge of the circuit court of Jackson county, Missouri, and, as such Judge of the juvenile court thereof. On August 2, 1922, upon a complaint filed, respondent as Juvenile Judge issued a summons commanding relator, Weber J. Emory, to appear before said Juvenile Judge in the juvenile court of Jackson county, Missouri, on August 4, 1922, bringing with him his two minor children Thelma Emory and Mildred Emory to be then and there dealt with as neglected minor children under the age of 17 years of Jackson County, Missouri.
Upon being served with said summons, relator duly appeared in court, but without said children, and filed a motion to dismiss the proceeding for want of jurisdiction based upon the following grounds:
1. That by a decree rendered by the circuit court of Clay county, Missouri, on June 17, 1921, divorcing relator, Weber J. Emory, from his wife Cleo T. Emory, relator was awarded the exclusive care, custody and control of said minor children. That said decree remains in force and wholly unmodified and is binding upon all parties to that proceeding wherein the wife, Cleo T. Emory, was plaintiff and relator Weber J. Emory was defendant.
2. That at the time of the filing of said complaint before the Juvenile Judge and the issuance of said summons, said minor children, Thelma Emory and Mildred Emory, were not within the jurisdiction of the juvenile court of Jackson county, Missouri, being in the custody of relator Weber J. Emory, under the decree of divorce aforesaid, and in Clay County, Missouri. Wherefore, the said juvenile court of Jackson county and respondent as judge thereof had no jurisdiction over said minors or to make orders affecting the custody thereof.
The respondent, however, refused to hear the said motion or to pass upon same, insisting that the relator produce his two said minor children in court to be dealt with according to law as neglected children. Whereupon relator applied to this court for a writ of prohibition. The provisional writ was issued, respondent has made return thereto to which relator has made reply which we may perhaps also consider as in the nature of a motion for judgment on the pleadings, and the case is now before us for determination. Briefs in relator's behalf have been filed, but none in support of respondent's side have been supplied.
While the case has been somewhat informally presented, yet from the manner in which matters are stated and pleaded, and from the papers and pleadings before us, the following appear to be the facts in the case:
Relator and Cleo T. Emory were husband and wife and Thelma and Mildred Emory were their minor children. The wife sued her husband for divorce in the circuit court of Clay county where they lived, and the husband filed a cross-bill. The court heard the case and gave the husband a divorce awarding him the care and custody of the two minor children. This decree was rendered June 17, 1921, and stands unmodified or changed in any way. The former wife took up her abode in Kansas City and the father and his two children resided in Clay county, the children being cared for at the home of their paternal grandfather. It seems that the father brought the children over to Kansas City to see their mother whereupon the latter, in an attempt to get possession of the children, made some sort of a complaint against the husband whereby he was arrested and held in custody over night. In order to prevent the mother from getting possession of the children, the father, while under arrest, placed the children under the care of...
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