State v. Superior Court for Snohomish County
| Decision Date | 28 April 1925 |
| Docket Number | 19194. |
| Court | Washington Supreme Court |
| Parties | STATE ex rel. LARISH v. SUPERIOR COURT FOR SNOHOMISH COUNTY. |
Department 1.
Appeal from Superior Court, Snohomish County; Bell, Judge.
Certiorari by the State of Washington, on the relation of Vincent H Larish, to review a judgment of the Superior Court for Snohomish county, discharging writ of habeas corpus and denying custody of child. Judgment affirmed.
Noah Shakespeare and Louis A. Merrick, both of Everett, for petitioner.
Coleman & Fogarty, of Everett, for respondent.
The petitioner, Vincent H. Larish, by this certiorari proceeding seeks review and reversal of a judgment of the superior court for Snohomish county, discharging a writ of habeas corpus and denying to him recovery of the custody of his minor daughter from her mother, his former wife. It is conceded that appeal is not an adequate available remedy for the review of that judgment, because the period during which Mr. Larish will be entitled to the custody of his child, if entitled to her custody at all will have expired before an appeal from the judgment of this court would in due course be heard and disposed of.
Responding to the petition filed in the superior court by Mr. Larish praying for the writ of habeas corpus and the custody of the child, Mrs. Larish set up three affirmative defenses. Mr Larish filed general demurrers to each of these affirmative defenses. All of the demurrers being by the superior court overruled, and Mr. Larish electing not to plead further in response to the affirmative defenses, the court rendered final judgment of dismissal upon the facts appearing by his petition and by her affirmative defenses.
The facts appearing in the petition for the writ, and the second affirmative defense of the answer of Mrs. Larish filed in response thereto, which, we think, are controlling of the claimed respective rights of the parties here drawn in question, may be summarized as follows:
Mr. and Mrs. Larish were married in 1919. Their only child, a daughter, the subject of this controversy, is now about 3 1/2 years old. On September 18, 1924, the district court of the Second judicial district of Montana for Silver Bow county awarded to Mrs. Larish a decree of divorce from Mr. Larish, and by the same decree awarded to her the absolute custody and control of their minor child until she arrives at the age of 14 years; reserving, however, to Mr. Larish the right to visit the child at reasonable times. On September 24, 1924, Mrs. Larish moved with the child from Montana to Everett, in this state, where they have both resided at all times since then. On December 11, 1924, the Montana court, which had granted the decree of divorce and the custody of the child to Mrs. Larish entered an order modifying its original decree of divorce to the extent of awarding the care and custody of the child to Mr. Larish for the period from January 1 to July 1, 1925, directing that the child be kept during that period either in Everett, Wash., or Butte, Mont.
On December 26, 1924, Mr. Larish, having come to Everett in this state, where he has ever since resided commenced an action in the superior court for Snohomish county seeking an injunction restraining Mrs. Larish from removing the child from that county, and also seeking to be awarded the custody of the child for the period from January 1 to July 1, 1925, a period which, it will be noticed, commenced five days after the commencement of that action. In his complaint in that action Mr. Larish pleaded the original decree of divorce and the awarding thereby of the custody of the child to Mrs. Larish on September 18, 1924, and also the order of December 11, 1924, modifying that decree by the awarding to him of the custody of the child during the period from January 1 to July 1, 1925. He also pleaded some other facts, pointing to the possibility of Mrs. Larish removing the child from Snohomish county. He prayed for an injunction against Mrs. Larish preventing the removal of the child from Snohomish county, and also for the awarding of the custody of the child to him during the period from January 1 to July 1, 1925. His prayer for relief as to the custody of the child was rested wholly upon the order of the Montana court of December 11, 1924, modifying the original decree in the divorce action in that court.
Mrs Larish appeared in that action in the superior court for Snohomish county and demurred generally to the complaint filed therein, upon the ground that it did not state facts sufficient to constitute a cause of action. That demurrer was by the superior court sustained, and, Mr. Larish refusing to plead further and electing to stand upon his complaint, judgment of dismissal was finally rendered by the court against him on February 10, 1925. The court evidently so disposed of that action upon the theory that the order of December 11, 1924, of the Montana court, was not a valid and binding adjudication touching the custody of the child in this state. Thereafter, on the same day, Mr. Larish filed in the superior court for Snohomish county his petition for a writ of habeas corpus, again seeking recovery of the custody of the child from Mrs. Larish, setting up, in substance, the same facts, and resting his claim for the custody of the child solely upon the order of the Montana court, modifying the original decree of divorce rendered by that court, to the extent of awarding the custody of the child to him for the period from January 1 to July 1, 1925. It is the judgment of the court disposing of...
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