Weidel v. Plummer, 36579

• Decision Date: 21 January 1955
• Docket Number: No. 36579,36579
• Citation: 243 Minn. 476,68 N.W.2d 245
• Court: Minnesota Supreme Court
• Parties: Nora B. WEIDEL, formerly Nora B. Plummer, Relator, v. Murel J. PLUMMER, Respondent.

Page 245

68 N.W.2d 245

243 Minn. 476

Nora B. WEIDEL, formerly Nora B. Plummer, Relator, v. Murel J. PLUMMER, Respondent.

No. 36579.

Supreme Court of Minnesota.

Jan. 21, 1955.

Syllabus by the Court.

The writ of prohibition may issue to prevent a court from exceeding its jurisdiction. It may also lie to prevent a court from abusing its discretion where there is no other adequate remedy at law. The writ of prohibition is not a writ of right but issues in the court's discretion only in extreme cases where no other adequate remedy by motion, trial, appeal, certiorari, or otherwise is afforded. It must be used with great caution and forbearance to further justice and secure order and regularity in the state's inferior courts and subordinate tribunals. Held on the record here in a matter involving the temporary custody of children, that the court neither exceeded its authority, abused its discretion, nor is about to do so.

Norman H. Nelson, Moorhead, for relator.

Stiening Olson & Thysell, Vance N. Thysell, Moorhead, for respondent.

DELL, Chief Justice.

This is an application to have a writ of prohibition issued out of this court made absolute.

In an action pending in the district court of Clay county in which relator, Nora Weidel, was plaintiff and Murel J. Plummer was defendant, judgment was entered on July 17, 1954, granting plaintiff an absolute divorce from the defendant and awarding to her the custody of the five minor children of the parties. On December 8 the Honorable Byron R. Wilson, one of the judges of said court, issued an order to show cause returnable before him on December 17 requiring the plaintiff, among other things, to show cause why the judgment should not be amended so as to change the custody of said children from the plaintiff to the defendant. At the appointed time the parties and their attorneys appeared in response to the order to show cause, and we were advised in an affidavit of Norman H. Nelson, attorney for the relator, filed with us in support of an application for a writ of prohibition, that the court, without taking any testimony and without reading or considering plaintiff's affidavits submitted in opposition to the application for a change of custody of said children, instructed defendant's attorney to prepare an order placing the custody of three of said children, namely: Elaine, Alvin, and Hazel, with the defendant, and further that the court intended to amend the provisions of the original judgment so as to change the custody of said children from the plaintiff to the defendant without a hearing or the right of cross-examination by the plaintiff and without a record being made in which a review could effectively by had on appeal. And it having been represented to us that the court was exceeding its jurisdiction and abusing its discretion, our writ of prohibition issued directing it to desist and refrain from changing the custody of said children prior to a final determination and to show cause before us why the writ should not be made absolute.

From the record now before us the following appears: After the divorce was granted plaintiff remarried in violation of M.S.A. § 517.03. Her husband is Emil Weidel. They live in Fargo, North Dakota. From August 24 until November 12, 1954, the five children of the parties lived with the defendant at Dilworth, Minnesota. On November 12 the plaintiff took the three youngest children to Fargo, North Dakota, to live with her and her husband in their home there. The circumstances under which the children were left with the defendant on August 24 and remained with him until November 12 are in dispute. From the showing before the trial court on December 17 made by the defendant, it appears that it was the claim of the defendant that plaintiff and Emil Weidel carried on an 'affair' prior to the divorce and that Weidel was living with the plaintiff in the home of the parties at Dilworth, Minnesota, in the presence of the children; that after the divorce and in the month of August plaintiff contacted the defendant and informed him that she could no longer take care of the children and 'that she didn't want them any more'; that she asked the defendant to take the children and care for them and this he agreed to do; that he thereupon moved into the home of the parties at Dilworth and cared for and supported all five of the children; that on November 21 plaintiff, without advising the defendant, came to the home in Dilworth and took the three youngest children to Fargo where they are living with the plaintiff, her husband, and a son by a former marriage in a three-room apartment. The affidavits of the two older children and that of defendant's mother support this showing in several respects.

On the other hand, from the showing of the plaintiff, it was her claim that Emil Weidel boarded with her and said minor children at Dilworth in order to...