State v. White, 6605.

• Decision Date: 07 August 1945
• Docket Number: No. 6605.,6605.
• Citation: 189 S.W.2d 205
• Parties: STATE ex rel. STEARNS et al. v. WHITE, Circuit Judge.
• Court: Missouri Court of Appeals

189 S.W.2d 205

STATE ex rel. STEARNS et al. v. WHITE, Circuit Judge.

No. 6605.

Springfield Court of Appeals. Missouri.

August 7, 1945.

"Not to be published in State Reports".

Original prohibition proceeding by the State of Missouri, on the relation of Delia Stearns and another, against the Honorable Warren L. White, Judge of the Circuit Court of Greene County, to prohibit respondent from exercising jurisdiction assumed by respondent in a habeas corpus proceeding against relators.

Writ of prohibition quashed.

Haymes & Dickey, of Springfield, for relators.

Gene G. Diemer, of Kansas City, and Joe N. Brown, of Springfield, for respondents.

BLAIR, Judge.

While the facts of this case are not in dispute, it will be well to state them briefly.

Respondent is Judge of the Circuit Court of Greene County, Missouri. On June 27, 1945, one C. Charle filed with respondent his petition for writ of habeas corpus, alleging that one Charles Arthur Charle was illegally restrained of his liberty by relators herein. Said writ of habeas corpus was issued by respondent, and served on relators, commanding them to bring said Charles Arthur Charle before respondent.

It seems that said C. Charle had theretofore filed a divorce suit against his wife, and, on her cross bill, such wife had been granted a divorce from said C. Charle, with the care and custody of said Charles Arthur Charle, the sole fruit of her marriage with said C. Charle.

It appeared at the hearing before us, and without dispute, that such wife afterwards died, and said Charles Arthur Charle was left in the physical custody of his maternal grandmother, Delia Stearns, one of the relators, and possibly Relator Lovey Collins. Relator Lovey Collins seems to have been a sister of the deceased former wife of C. Charle. Whether the relator Lovey Collins had the physical custody of Charles Arthur Charle, now thirteen years of age, is not altogether clear to us, but she was said by said C. Charle to have been restraining said Charles Arthur Charle of his liberty.

Taking the position that respondent had only jurisdiction in the divorce case to award the care and custody of said minor child and no jurisdiction, more than any other circuit judge, to award said custody in a habeas corpus case, relators now seek to prohibit respondent from exercising such assumed jurisdiction in a habeas corpus case.

If respondent, as such circuit judge, has such jurisdiction, notwithstanding such award in the divorce case, our temporary rule in prohibition, heretofore issued against respondent, should be quashed.

If respondent has not such jurisdiction in habeas corpus, under the circumstances in this case, our rule in prohibition should be made permanent.

Habeas corpus is an ancient remedy and has been uniformly recognized as the right of every citizen and has been equally anciently exercised by all courts.

It was the statutory duty of respondent as circuit judge to issue a writ of habeas corpus. Secs. 1590 to 1594, and Sec. 1658, Revised Statutes of Missouri, 1939, Mo.R.S.A Section 12 of Article I, of the New Constitution, adopted February 27, 1945, provides: "That the privilege of the writ of habeas corpus shall never be suspended."

Relators lay much stress on our late decision in Edwards v. Engledorf, 180 S.W. 2d 603. In their brief, relators also cite, In re Morgan, 117 Mo. 249, 21...