Weir v. Marley

• Decision Date: 27 January 1890
• Citation: 12 S.W. 798,99 Mo. 484
• Parties: WEIR et ux. v. MARLEY.
• Court: Missouri Supreme Court

12 S.W. 798

99 Mo. 484

WEIR et ux. v.MARLEY.

Supreme Court of Missouri.

January 27, 1890.

HABEAS CORPUS — RES ADJUDICATA — CUSTODY OF CHILDREN.

1. The doctrine of res adjudicata, in the absence of a new state of facts, applies to a discharge on habeas corpus, even when used to obtain custody of children.

2. Where the good of the child will apparently be as well promoted in one family as the other, it will not be taken from its father, and placed with its grandparents, with whom it has lived since the death of its mother, on the ground that the father had by parol given it to them.

SHERWOOD, J., dissenting.

On writ of habeas corpus.

Boyd & Delaney, for petitioners.J. H. Morrison and Goode & Cravens, for respondent.

BRACE, J.

The issues in this case arise upon the return of the respondent to a writ of habeas corpus issued by SHERWOOD, J., on the 9th day of September, 1889, returnable to the supreme court at the October term thereof, by which the petitioners, who are husband and wife, and the maternal grandparents of Louise Marley, an infant aged six years on the 6th day of May last past, seek to recover the custody of said infant from the respondent, who is the father of said infant, and who on the same day, before W. D. HUBBARD, judge of the circuit court within and for Greene county, on writ of habeas corpus, had theretofore recovered the said infant from the custody of the petitioners.The parties to this suit and to that before Judge HUBBARD are the same.The state of facts on the same day and almost within the same hour within which that adjudication was had and this writ was issued are the same.The facts stated in the return of the petitioners to the writ of Judge HUBBARD and those stated by them in the petition herein are substantially the same, and the question whether the discharge of a party in custody by writ of habeas corpus, by a court or officer of competent jurisdiction, is final and conclusive as to the legality of such custody upon the then existing state of facts, is presented by the facts in the case, and we are requested to express an opinion thereon, though not formally pleaded as an estoppel.

Treating this case for the present as a normal one, in which a party charged to be illegally restrained of his liberty, and for whose relief a writ of habeas corpus is the appropriate remedy, and who has by such writ been discharged from that restraint by a tribunal competent to so discharge him, is such discharge final and conclusive?That the doctrine of res adjudicata is not applicable to the case of a refusal to discharge, and that the prisoner is entitled to the opinion of all the courts or officers authorized in a given cause to issue the writ as to the legality of his imprisonment, is conceded and is not limited in this state by statutory enactment, except in the one particular that the applicant for the writ in his petition must state "that no application has been made or refused by any court or officer superior to the one to whom the petition is presented."Subject to this limitation, one restrained of his liberty may in succession apply to every court or officer authorized to issue the writ, notwithstanding another court or officer having jurisdiction may have refused to issue it or to discharge him from such restraint, "and from such refusal no appeals will lie," as was held in Howe v. State, 9 Mo. 690, the reason assigned in that case being that "the refusal to grant a discharge is not a final judgment from which an appeal will lie to this court;" and in Ferguson v. Ferguson, 36 Mo. 197, where an order had been made by the circuit court discharging one child from and remanding two other children into the custody of the father, on a writ issued upon the petition of the mother, appealed from to this court, it was ruled that, "so far as the decision discharged or remanded the persons restrained, this court has no appellate jurisdiction to interfere with it, and no appeal lies to this court in such case,"(citingHowe v. State, supra.)"In this respect the decision is not of the nature of a final judgment.It concerns only the present actual condition of things, and the order of the court is at once executed and accomplished beyond recall, and, in reference to any new state of facts existing afterwards, the parties have the same remedies as before, whether by writ of habeas corpus or other proceeding, in any court of competent jurisdiction."From these cases may be deduced the doctrine that the principle of res adjudicata does not apply in cases of habeas corpus to judgment remanding the prisoner, or to judgments discharging the prisoner, where a new state of facts warranting his restraint is shown to exist different from that which existed at the time the first judgment was rendered.That it does apply to a judgment discharging the prisoner, where no such new state of facts is shown, may as readily be deduced from the case of Ex parte Jilz, 64 Mo. 205.The distinction thus made between judgments remanding and those discharging the prisoner grows out of the nature of the writ, whose raison d'etre is the protection of personal liberty.It loses none of its characteristics when used for the purpose of obtaining the custody of children, and the same analogies ought to obtain in such cases as when used simply for the purpose of discharging a prisoner from illegal restraint.If this be so, then the judgment of a court or officer of competent jurisdiction, discharging the infant in this case from the custody of the petitioners on the 9th day of September, 1889, on writ of habeas corpus, ought to be a complete answer to their petition presented on the same day to another court or officer of like jurisdiction, for a like writ, to recover that custody from the same person to whom it was awarded, setting out the same grounds for such recovery in their petition as was set up in their return to the former writ; and this conclusion would not be inconsistent with the actual rulings in the cases cited from this state or the nature of the writ, and would be sustained by authority elsewhere, (Mercien v. People, 25 Wend. 64;People v. Mercien, 3 Hill, 399;People v. Brady, 56 N. Y. 182; Com. v. McBride, 2 Brewst.545;In re Da Costa, 1 Park. Crim. R. 129;Brooke v. Logan, 112 Ind. 183, 13N. E. Rep. 669;Spalding v. People, 7 Hill, 301;People v. Burtnett, 5 Park. Crim. R. 113;McConologue's Case, 107 Mass. 154;Freem.Judgm.(3d Ed.) § 324;Church, Hab. Corp. §§ 386, 387,) and might be placed upon the ground thus stated in Freeman, supra: "The principles of public policy requiring the application of the doctrines of estoppel to judicial proceedings, in order to secure the repose of society, are as imperatively demanded in the cases of private individuals contesting private rights under the form of proceedings in habeas corpus as if the litigation were conducted in any other form; otherwise, as is well stated in the opinion of Senator PAIGE, [Mercien v. People, 25 Wend.supra,]`such unhappy controversies as these may endure until the entire impoverishment or the death of the parties renders their further continuance impracticable.If a final adjudication upon a habeas corpus is not to be deemed res adjudicata, the consequences will be lamentable.This favored writ will become an engine of oppression, instead of a writ of liberty.'"The serious objection to the conclusiveness of a judgment on habeas corpus in such causes would be removed by a provision for review by appeal or writ of error.It would seem that such provision has been made by statute in some of the states, (Church, Hab. Corp. § 388;) but Mr. Church is mistaken in the statement that decisions in such cases may be reviewed by statutory authority in Missouri by appeal, and Ferguson v. Ferguson, supra, cited by him, is not authority for such statement.

This much has been said in reference to the conclusiveness of the discharge of the infant from the custody of the petitioners on the first writ, in deference to the wish of the parties to have the views of the court upon that subject expressed; but as both parties seem desirous of having the status of this infant definitely settled as far as...