Tillman v. Walters

• Decision Date: 10 December 1925
• Docket Number: 3 Div. 726
• Citation: 108 So. 62,214 Ala. 71
• Parties: TILLMAN v. WALTERS.
• Court: Alabama Supreme Court

108 So. 62

214 Ala. 71

TILLMAN v. WALTERS.

3 Div. 726

Supreme Court of Alabama

December 10, 1925

Certiorari to Court of Appeals.

Petition of Lisbon Tillman for certiorari to the Court of Appeals to review and revise the judgment and decision of that court in the case of Tillman v. Walters, 108 So. 61. Writ granted.

See also, Tillman v. Walters (Ala.Sup.) 108 So. 67 (3 Div. 752).

John S Tilley and Hill, Hill, Whiting, Thomas & Rives, all of Montgomery, for appellant.

L.A Sanderson, of Montgomery, for appellee.

THOMAS J.

This is a petition for certiorari to the Court of Appeals to review its action in dismissing an appeal from an order in habeas corpus before the circuit judge for the custody of infants. 108 So. 61.

A preliminary observation may be made, as to such petition, proceedings or pleadings therein, that mere legal niceties are not favored. Murphree v. Hanson, 72 So. 437, 197 Ala. 246, 259; State v. Thurman, 88 So. 61, 17 Ala.App. 656; Frank v. Mangum, Sheriff, 35 S.Ct. 582, 237 U.S. 348, 59 L.Ed. 969. It is immaterial, in any matter affecting the custody of a child, whether it be brought to the attention of a court by bill, petition ( McDaniel v. Youngblood, 77 So. 674, 201 Ala. 260), or application for writ of habeas corpus (Harrist v. Harrist, 43 So. 962, 151 Ala. 656); and the relief denied indicates the form of the application. Murphree v. Hanson, supra; Powell v. Johnson (Ala.Sup.) 104 So. 525.

It should be observed that due process, required by the Constitution in legal proceedings in the state courts based upon a law not repugnant to the federal Constitution and conducted according to the settled course of such proceedings as established by the law of such state, includes due notice, a hearing, or opportunity to be heard, before a court of competent jurisdiction. Where the law of the state provides for an appeal in a case to the Supreme Court of that state upon well-recognized grounds, that procedure will be looked to in the determination by the federal court of whether the defendant has been deprived of his life, liberty, or property contrary to the Fourteenth Amendment. This amendment does not require that a state shall provide for an appellate review. Hurtado v. California, 4 S.Ct. 292, 110 U.S. 516, 28 L.Ed. 232; Pittsburgh, etc., Co. v. Backus, 14 S.Ct. 1114, 154 U.S. 421, 38 L.Ed. 1031; Reetz v. Michigan, 23 S.Ct. 390, 188 U.S.

505, 47 L.Ed. 563, 566; Frank v. Mangum, Sheriff, 35 S.Ct. 582, 237 U.S. 309, 59 L.Ed. 969, 980.

In Woodward Iron Co. v. Bradford, 90 So. 803, 206 Ala. 447, 450, it was declared that the right of appeal was a part of the remedy (Theo. Poull Co. v. Foy-Hays Const. Co., 48 So. 785, 159 Ala. 458, and that the Legislature can limit, restrict, or abolish the right of appeal so long as it does not attempt to restrict the right of this court to exercise its superintendence and control over inferior tribunals under section 140 of the Constitution. Ex parte L. & N.R.R., 58 So. 315, 176 Ala. 631, Ex parte Croom & May, 19 Ala. 566. If, therefore, there is no statute providing for a review by the Court of Appeals or this court of the order or judgment in habeas corpus (in criminal or quasi civil cases), for this failure the organic law, state or federal, is not offended.

The state and federal decisions recognize that the right of appeal to the Supreme Court in habeas corpus suits and other cases is regulated by statute. Unless such further hearing is so provided that right does not exist under the common law. Smotherman v. State, 37 So. 376, 140 Ala. 168; In re Knox, 64 Ala. 463; Woodward Iron Co. v. Bradford, 90 So. 803, 206 Ala. 447, 450; EX parte L. & N.R.R., 58 So. 315, 176 Ala. 631; Theo. Poull Co. v. Foy-Hays Const. Co., 48 So. 785, 159 Ala. 458, 10 A.L.R. 402; Frank v. Mangum, Sheriff, 35 S.Ct. 582, 237 U.S. 309, 59 L.Ed. 969, 980; State v. Thurman, 88 So. 61, 17 Ala.App. 656. It follows that the privilege of the writ of habeas corpus in criminal or civil cases is not suspended by the authorities of the state (Const. § 17), by failure to provide for an appeal in a class of cases founded and based on a recognized classification or distinction and denied in another due classification. State v. Berkstresser, 34 So. 686, 137 Ala. 109; Ex parte Smith, 102 So. 122, 212 Ala. 262; Woco Pep Co. v. City of Montgomery (Ala.Sup.) 105 So. 214.

From the foregoing are the decisions that, appeal not being given in habeas corpus, there was the right to apply successively to the different courts or magistrates for the writ (Ex parte Croom & May, 19 Ala. 561; Ex parte Hardy, 68 Ala. 324; Ex parte Cleveland, 36 Ala. 306), and from this later came the statute giving the aggrieved party the right of appeal, construed to embrace the solicitor for the state as well as a defendant, and the upholding of the statute as not being offensive to section 17 of the Constitution. State v. Towery, 39 So. 309, 143 Ala. 48, 50; State v. Lacey, 48 So. 343, 158 Ala. 16.

To a better understanding of the case presented, it should be observed that the petition for habeas corpus for the custody of the minor was addressed to a circuit judge, and the order thereon was final and conclusive of the rights of petitioner and in favor of respondent as to the custody of the child. That is to say, it was a final judgment in the premises, so long as the facts are unchanged, until the material circumstances of the case warrant another judgment, or until modified or reversed by review, or, in the exercise of the court's right of superintendence and control over inferior jurisdictions, the same is modified or reversed. Const. § 140; Woodward Iron Co. v. Bradford, 90 So. 803, 206 Ala. 447, 450.

That the right of appeal existed was recognized in Powell v. Johnson (Ala.Sup.) 104 So. 525, where the question was not discussed. Other cases adverted to are Payne v. Graham, 102 So. 729, 20 Ala.App. 439, before the Code of 1923 with its section 3238 was effective; Thacker v. State, 101 So. 636, 638, 20 Ala.App. 302, was extradition and before the Code of 1923; State v. Gilbert, 102 So. 155, 20 Ala.App. 357, and State v. Jones, 101 So. 814, 20 Ala.App. 349, were for bail. The change in the statute from section 6245 of the Code of 1907 to section 3238 of the Code of 1923, as affecting criminal cases, is pointed out in Ex parte Shirley, 103 So. 68, 20 Ala.App. 473. There was no petition for certiorari filed in this court in that case.

Before answering the question of the right of review vel non by appeal in the instant case, it should be observed that our decisions in habeas corpus cases generally have not made clear the distinction between petitions, orders, and appeals in habeas corpus proceedings civil in nature--as to determine the custody of children, debtors, witnesses, seamen, and the like--and those in criminal cases for bail or the discharge of one under indictment for crime. A casual consideration of the reasons for the distinction will suggest that the former is in material respects an action partaking of the nature of a private suit, in which the public primarily has no concern, and the rights of the respective parties and the subjects of the petition (the child or children) are determined as a civil action. The judgment rendered is a final adjudication in regard to such custody (McKenzie v. Jensen, 70 So. 678, 195 Ala. 36; Burns v. Shapley, 77 So. 447, 16 Ala.App. 297); and it is held in other jurisdictions that the right to appeal followed (People ex rel. Green v. Court of Appeals, 61 P. 592, 27 Colo. 405, 51 L.R.A. 105, 112; Jamison v. Gilbert, 135 P. 342, 38 Okl. 751, 47 L.R.A.[ N.S.] 1113).

Further illustrating the nature of such petition and order in habeas corpus for the custody of children, it is held that the awarding of the custody of a child to petitioner is self-executing (McEntire v. McEntire [Ala.Sup.] 104 So. 804); the taking of an appeal and the

giving of an appeal bond by the respondent do not entitle the latter to retain custody of the child pending the determination of the appeal, but such action on the part of the respondent merely operates to stay execution for costs incurred in the initial proceeding and hearing (Willis v. Willis, 75 N.E. 655, 165 Ind. 332, 2 L.R.A.[ N.S.] 244, 6 Ann.Cas. 772). There is analogy in the effect of security for costs on appeal in the civil contempt of McEntire v. McEntire (Ala.Sup.) 104 So. 804, and Ex parte Charleston, 18 So. 224, 107 Ala. 688, where the charge was bastardy, partaking of both a civil and a criminal suit; and Morrow v. Bird, 6 Ala. 834, a debtor held on a writ of ca. sa., by virtue of civil process; Ex parte Dickens, 50 So. 218, 162 Ala. 272; Ex parte Hardy, 68 Ala. 303, in civil contempt; Ex parte Pearce, 20 So. 343, 111 Ala. 99, for discharge of witness; Shows v. Pendry, 9 So. 462, 93 Ala. 248, discharging an apprentice; 29 C.J. 102-104, 109, for quarantine, bastardy, and arrests in civil cases, ne exeat, married women, bankruptcy, seamen, insane persons and infants.

The distinction between habeas corpus for the custody of children as a civil action and that by a defendant for relief from an illegal custody or for bail (criminal) is indicated by Mr. Chief Justice Hayes as follows:

"*** An examination of the authorities convinces us that the weight of authority holds that there is a distinction between a habeas corpus proceeding brought to secure the release of a person from restraint and a similar proceeding instituted to determine the right to the custody of children. In the former class of cases, a decision on one writ is not a bar to the issuance of and proceedings upon a second writ but an order in a proceeding to determine the right to the custody of a child, where the facts in the proceeding are the same as the first, is res

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