Yarbrough v. Dunnam

• Decision Date: 29 January 1923
• Docket Number: 23007
• Citation: 130 Miss. 669,94 So. 892
• Court: Mississippi Supreme Court
• Parties: YARBROUGH v. DUNNAM et al

94 So. 892

130 Miss. 669

YARBROUGH v. DUNNAM et al

No. 23007

Supreme Court of Mississippi

January 29, 1923

APPEAL from circuit court of Perry county, HON. R. S. HALL, Judge.

Habeas corpus by R. Y. Yarbrough against G. R. Dunnam and another. From an order awarding the custody of plaintiff's minor child until the further order of the court, defendants appeal. Reversed, and petition dismissed.

Reversed, and petition dismissed.

E. C Fishel, for appellant.

While this appeal presents nothing to the court except such matters of law and fact as are reflected by the record itself, yet, I am convinced that the decree entered on August 11, 1922 shows conclusively that the court had no jurisdiction to enter the order of that date. This decree exculpates appellant, Yarbrough, from any and all acts of misconduct toward said child which would deprive him of his right of custody and further recites that the reason partial custody is granted to G. R. and Annie Dunnam is because the court feels that in its former decree it should have decreed the said G. R. and Annie Dunnam partial custody of said child.

The court will note that the question of jurisdiction was raised in the trial court by both the demurrer and the answer and the same is called to the attention of this court in the first and third assignments of error. We therefore respectfully submit that the demurrer should have been sustained in this cause, or if as a matter of pleading, we were mistaken in demurring to this petition, then we respectfully submit that on the answer of R. Y. Yarbrough when the court found no new facts had arisen since the entering of the order of January 14, 1922, to warrant him in changing the custody of the child the court should have dismissed the petition of G. R. and Annie Dunnam.

Section 2461 of the Code of 1906 (section 2027, Hemingway's Code), of itself is plain and I respectfully submit is capable of being easily understood, but this honorable court in the case of Gray v. Gray, 121 Miss. 541, 83 So. 726, has already construed this section and in express words has said that the powers of the chancery court in habeas corpus proceedings to obtain custody of the infant are limited by section 2461, Code 1906, section 2027, Hemingway's Code, to discharging the child or awarding his custody to the person entitled thereto and do not include general power over the custody of the child, so that after awarding the custody to petitioner the court cannot by subsequent order require them to permit the child to visit his grandparents.

I most respectfully submit that the opinion rendered in said cause is a stronger argument in behalf of the appellant than your humble servant is capable of presenting and that under and by virtue of authority of said case that appellant is entitled to have this cause reversed and decree entered here dismissing the petition of said G. R. and Annie Dunnam. This, however, seems to be the law generally. The jurisdiction of the court in habeas corpus proceedings will ordinarily cease on rendering final judgment but inadvertence in the entry of a final order has been held not to deprive the court of the jurisdiction to make former findings and judgments containing necessary directions. C. J. 29, 117; see, also Ex parte Hunt, 100 Ark. 419, 140 S.W. 710; Ex parte Zaney, 164 Cal. 724; Ex parte Smith (Mo. App.), 2 S.W. 681; State v. Rassieur, 186 Mo.App. 214, 171 S.W. 688.

From the reading of the above cases it will be seen that jurisdiction had terminated and that the court was without authority to make or enter any further valid orders, and as our court has already decided this same question in Gray v. Gray, supra, favorable to our contentions and has never passed on the proposition contrary to this view, I believe that the above cited authorities are sufficient to sustain our position.

No brief found in the record for appellee.

OPINION

SMITH, C. J.

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