Shaw v. McHenry , 52 Iowa 182 ( 1879 )

Seevers, J.

In 1876 the plaintiff brought an action in the District Court of Pollc county, in tlie fifth judicial district, for a divorce from his wife, Florence Shaw, and to obtain the custody of their only child, Lillian M. Sliaw. The relief asked was granted, and a decree accordingly entered in December, 1876. Having custody of said Lillian under the decree, tlie plaintiff placed her in the custody and in the care of John Montgomery.

In June, 1878, the said Lillian, being then about, eight years old, by her next friend and father (the plaintiff herein) presented a petition to tlie Hon. John Mitchell, judge of the first circuit of the fifth judicial district, in which it was alleged the said Lillian was “restrained of her liberty” by said John Montgomery. In accordance with tlie prayer of the petition a writ of habeas corpus was issued by said judge. Montgomery made a return to tlie writ, and it was found and determined by said judge that said Lillian was “restrained of her liberty” by said Montgomery. Webster Mains, of Mills comity, was appointed her special guardian, and she was awarded to his care and custody. -The order made by said judge directed tlie sheriff to deliver said Lillian to said special guardian. This order was not executed, because “ Mrs. Eliza Montgomery kidnapped said cliild and carried lier away to another state, and tliere kept lier domiciled until an indictment had been found against lier for said crime, when she and said Lillian wore brought to Polk county in charge of an officer.” At wliat time this occurred does not appear.

On the 16th day of December, 1878, tlie said circuit judge made ail order that the sheriff proceed to execute the order previously made by him, which is hereinbefore mentioned.

On tlie second clay of January, 1879, Florence Shaw presented a petition to tlie defendant, as judge of the District. Court., in which she prayed the following relief: “That John W. Sliaw may. be required to answer this her petition, and upon the hearing of the same the custody of said Lillian M. Sliaw may be awarded to defendant (Florence Sliaw), and she further prays that during tlie pendency of this proceeding said Lillian M. Shaw may be placed in the custody of some suitable person, to be held and kept within Polk county, Iowa, until the further order of -this court, and that the sheriff of Polk county may be restrained from removing her out of said county.” On the same day the defendant, as judge of said District Court, made the following order in the promises: “ It is therefore ordered by me that upon the filing by Ella Holmes of a bond with the clerk of the District Court of Polk county, conditioned in the sum of three hundred dollars that she will take said child into her custody, and keep her within Polk county, Iowa, and obey the further order of this court with reference to said-child, with sufficient surety to be approved by said clerk, then that the sheriff of Polk county shall deliver said Lillian JVi. Shaw to said Ella Holmes.”

The legality of this order is the question to be determined in this proceeding, and in reference thereto we have to say:

1. judgment: jud've-0coiiaterai review. I. The writ of habeas corpus is a writ of right guaranteed by the Constitution, Art. I, Sec. 13. It issues in behalf of any one who is illegally restrained of his liberty, and may be allowed by the Supreme, District or Cirou¡t Oourt, or any judge thereof. Penalties are imposed on any judge who “wrongfully and willfully” refuses tiie writ wlien properly applied for. Code, Secs. 3449, 3451, 3457. The only limitations are, an application for the writ must be made to the most convenient judge, and it may be disallowed if from the showing made by the petitioner the court or judge-is of opinion he is not entitled to any relief whatever. Code, Secs. 3452, 3453.

It is not claimed, and it conlcl no-t be successfully, that the allegations of the petition were not sufficient to authorize and require tbe circuit judge to issue the writ, fjffie contrary clearly appears. This being true, said judge had jurisdiction of the parties, and the subject-matter. It follows that the order made by said judge was not void, but voidable at most, and could only be reviewed, reversed' or changed in a direct nroeeeding by appeal or some other proceeding known to the law. As long as it remained in force it was entitled to full laith and credit. It could not be reversed, set aside or evaded in a collateral proceeding by any other court or judge.

2. TOcati1on.dem II. It is insisted tliat said order only remained in force the vacation of the Circuit Court, and for the first two days of the ensuing term. This thought is based upon the following provisions of the Code:

“Sec. 2922. Every direction of a court or judge made or entered in writing and not included in a judgment, is an order.

“Sec. 2923. For good cause-shown, a judge’s order may issue in vacation, directing any of the officers of the court in relation to the discharge of their duties.

“ Sec. 2924. Such order shall be in force only during the vacation in which it is granted, and for the first two days in the ensuing term.”

These sections were taken without change from the Revision, except in their arrangement. In the Revision they were numbered 3427, 3795 and 3796.

In Curtis v. Crane, 38 Iowa, 459, it was held that what is now section 2924 of the Code only referred to the orders contemplated in section 2923. The slight difference in the arrangement of these sections will not warrant us in changing the construction established in the foregoing case. The fact that Webster Mains lives in Mills county would not have the effect of making tbe order of tlie circuit judge void.

„ T„„TOt'T„ vo?ce:: castotly of cima, III. It is provided by statute that “where a divorce is decreed tlie court may make such an order in relation to the children, property, parties, and tbe maintenance °*’ ^ie parties, as shall be right and proper. Subsequent changes may be made by the court in these respects when circumstances render them expedient. Code, section 2229. It is insisted tlie District Court retained jurisdiction for the purpose of making the changes contemplated by the statute, and that such was the object sought in the petition filed in said court on which the order in question was based.

Conceding tbis to be true, the argument must assume of necessity that tlie jurisdiction of tlie court granting the divorce is exclusive, and that no other court or judge can make an order in relation to the custody of tliecliildren before the jurisdiction of tlie court granting tlie divorce is invoked. Now it is certainly true this may never be done; the argument must go beyond, this and assume that if a court or judge whose jurisdiction is otherwise undoubted' makes such an order, it becomes void and of no effect when the jurisdiction of the court granting the divorce is invoked. This cannot be, and no warrant is found therefor in the statute. Upon principle such a construction cannot be sustained.

Construing the foregoing section, it was held in Blythe v. Blythe, 25 Iowa, 266, and Wilde v. Wilde, 36 Id., 319, that no subsequent change could be made in relation to alimony unless there was a showing there had been a change of circumstances which rendered it expedient; thus, in effect, requiring a new case to be made out before the court could make a change in the decree. In view of this holding it may be that the word “court” in said section should be construed to mean “ courts.” “ Words importing the singular number may be extended to several persons or things.” Code, section 45, subdivision 3.

i ._. -• But passing this question, and also the further one that the statute contemplates the change should be made by the court and not by the judge, we have to say we think the defendant exceeded his jurisdiction in making the order in question.

Whether the defendant as district judge could enjoin the removal of the child from Polk county under an unexecuted order of the circuit judge may be doubtful. We pass this question also.

The order went much further than this. It took the child from the custody of the sheriff, and placed it in the custody of another person, thus effectually obstructing, revoking and changing a valid order made by the circuit judge in a collateral proceeding. This the defendant had no power to do. No warrant can be found therefor in the statute, and upon principle it cannot be sustained. Andrews v. Andrews, 15 Iowa, 423, does not conflict with the foregoing view.

The order made by the defendant as district judge is, therefore, set aside and annulled, and Florence Shaw must pay the costs in this court.