State v. Superior Court in and for Pierce County

• Decision Date: 28 January 1918
• Docket Number: 14644.
• Citation: 170 P. 130,99 Wash. 619
• Parties: STATE ex rel. McGHEE v. SUPERIOR COURT IN AND FOR PIERCE COUNTY et al.
• Court: Washington Supreme Court

170 P. 130

99 Wash. 619

STATE ex rel. McGHEE v. SUPERIOR COURT IN AND FOR PIERCE COUNTY et al.

No. 14644.

Supreme Court of Washington

January 28, 1918

Department 1. Original proceedings by the State, on the relation of Mabel I. McGhee, against the Superior Court of the County of Pierce and Hon. Ernest M. Card, one of the Judges thereof. Demurrer to the petition sustained, and alternative writ quashed.

A. O Burmeister and Carroll A. Gordon, both of Tacoma, for relator.

Henry Conger, of Tacoma, and A. L. Haight, of Fallon, Nev., for respondents.

WEBSTER J.

Prior to June 8, 1917, L. D. Oar and relator, Mabel I. McGhee, were husband and wife, residing in the state of Nevada; Coral Emeline Oar, a minor child of the age of three years, being the issue of this marriage. On that date, by a decree of the district court of Nevada, the parties were divorced, the custody of the minor child being awarded to the mother and father respectively, for alternate periods of six months following the entry of the decree. Thereafter the relator married and removed with the minor child to Pierce county, Wash., where she now resides. After the expiration of the first period provided in the decree, the father, who still resides in Nevada, made application to the superior court of Pierce county by habeas corpus proceedings for the custody of the child, and upon the hearing thereof the court found that the father was a suitable person to have the care and custody of the child, and announced its decision that the child, which had been in the custody of the court during the pendency of the proceedings, be forthwith delivered to the petitioner therein. Whereupon relator applied for an order fixing the amount of a supersedeas bond to stay the judgment pending appeal to this court, which being denied, relator filed an original application in this court setting forth, in substance, the foregoing facts, and in addition thereto alleging that she is desirous of obtaining a review of the habeas corpus proceeding by appeal, and that, unless prevented, the father will remove the minor child from the jurisdiction of this court, thereby depriving relator of the fruits of such appeal in the event the same is successful. Relator prays that an order be issued by this court requiring the superior court to fix the amount of such supersedeas bond, and that it be prohibited from entering a judgment delivering the custody of the child to its father pending the hearing of this application. An alternative writ issued as prayed, and on the return day respondent demurred to the petition upon the ground that the facts therein stated are not sufficient to warrant the granting of the relief sought.

In support of the application relator contends that upon the execution of a supersedeas bond the judgment in the habeas corpus proceeding is stayed, and the custody of the child transferred to the relator, in whose custody it was when the proceeding was instituted. We cannot accede to this view. While we have held that an appeal will lie from a final judgment in habeas corpus proceedings, we have never held that such judgments may be superseded pending appeal. In State ex rel. Davenport v. Poindexter, 45 Wash. 37, 87 P. 1069, we said:

'It is contended here by relators that the filing of the supersedeas bond had the effect of leaving all parties in the position they occupied at the commencement of the habeas corpus proceedings before respondent, and that, as they then had the possession and custody of the children they became immediately entitled thereto again

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