State of Missouri v. Crouse, 20955.

Decision Date10 November 1947
Docket NumberNo. 20955.,20955.
PartiesSTATE OF MISSOURI, EX REL., GEORGE ALLEN WALKER, AND VELDA WALKER, RELATORS v. EMMETT J. CROUSE, JUDGE OF THE CIRCUIT COURT OF BUCHANAN COUNTY, MISSOURI, RESPONDENT.
CourtMissouri Court of Appeals

Ellis G. Cook for respondent.

ORIGINAL PROCEEDING IN PROHIBITION.

CAVE, P.J.

By our writ of prohibition, the relators seek to prohibit the respondent, Emmett J. Crouse, Judge of the Circuit Court of Buchanan County, from further exercising jurisdiction in a proceeding of habeas corpus, wherein one James Williams, as petitioner, seeks to obtain the custody of his two minor children, James Franklin Williams, Jr. and Ronald Allen Williams. Upon application being filed, a preliminary rule was entered requiring respondent to show cause, and he in due time made his return. Relators then moved for judgment upon the pleadings, thus presenting questions of law based upon the facts well pleaded.

The material facts are: One James Williams and Blanche Walker were married sometime prior to 1939, and there were two children born of that marriage namely, James Franklin Williams, Jr. and Ronald Allen Williams. On February 21, 1939, Blanche Williams obtained a decree of divorce from James Williams, and the decree, among other things, awarded her the custody of said children. That judgment has not been modified. Thereafter, she and the children went to live in the home of her parents, relators herein. Sometime later Blanche Williams died, and it is alleged, by relators, that before her death she executed her written consent to the adoption of said children by relators. On February 24, 1947, James Williams instituted a proceeding by habeas corpus in the Circuit Court of Buchanan County seeking the custody of the two children and making these relators defendants. In due time they filed their return to said writ and, among other things, pleaded the decree of divorce awarding custody of the minors to Blanche Williams and challenging the jurisdiction of the court to hear such habeas corpus proceeding, "* * * for the reason that the sole jurisdiction for the custody of said children was in the court and in the proceedings wherein the divorce was granted, and could only be determined by that court in a motion to modify the decree of divorce, and not in a separate petition for habeas corpus." Respondent (the Circuit Judge) denied such plea to his jurisdiction and proceeded to hear the cause and awarded custody of the minor children to their father, James Williams, and is threatening to enforce that decree. Thereupon, relators filed their petition for prohibition in this court, alleging that respondent had no jurisdiction to enter the decree, which was entered in the habeas corpus proceeding, and that there was no appeal from such void judgment and their only relief was by prohibition proceedings in this court.

The vital question is whether respondent had jurisdiction to award the custody of the two minor children to their father in the habeas corpus proceeding filed before him, notwithstanding the fact that it is conceded that a court of equal jurisdiction had awarded the custody of the children to their mother in a divorce proceeding, after which she died. We are not concerned with the merits of the case, but only with the question of jurisdiction.

Relators rely principally upon a decision by the Springfield Court of Appeals in Edwards v. Engledorf, 180 S.W. (2d) 603. That opinion does lend support to relators' contention. But we find an opinion by the same court, on a set of facts practically identical with the facts presented to us, in which the court explains what is...

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