In re Morgan , 117 Mo. 249 ( 1893 )

Black, C. J.

— On the sixth- of February, 1893, the petitioner, Mary E. Morgan, sued out of this court a writ of habeas corpus to obtain possession of her child between three and four years of age, then in- the custody of Harry E. Morgan, the father of the child and husband of the plaintiff. The defendant made return to the writ, setting up various matters, some of which are admitted and others denied. Two of these issues go to the jurisdiction of this court. As to these issues the parties have agreed upon the facts, and they present the only questions now before us for consideration.

The agreed facts are:

“First. It is admitted that the child Gladys Morgan was on the eighteenth day of October, 1892, removed by respondent, her father, to the city and state of New York, where she now is and was at the time of the issuance and service of the writ issued in this case; but in this connection it is also admitted that the respondent has not at any time forfeited or given, up his parental power of control over the said Gladys Morgan and could, and still can, in obedience to the command .of the writ if so ordered by the court, and if sufficient time be given for that purpose, produce the said child before this court.

“Second. That divorce proceedings are pending in the. circuit court of the city of St. Louis, at the instance of relator against respondent, but that the custody of the said Gladys Morgan has not been asked or prayed for in said proceeding by either the relator or respondent.77

. The first inquiry is, whether the circuit court has jurisdiction in the pending divorce suit to award custody of the child to the party entitled thereto, having due regard to its welfare.

Section 4505, Revised Statutes 1889, provides: “When a divorce shall be adjudged, the court shall make such order touching the alimony and maintenance of the wife, and the care, custody and maintenance of the children, or any of them, as, from the circumstances of the parties and the nature of the case, shall be reasonable,” etc.

That the statute gives the circuit court the power to award the custody of a child to either of the parties to the divorce suit cannot be doubted and is not questioned. But it is suggested here that this jurisdiction is purely statutory, and by the statute the circuit court can only make such award upon a final decree, and hence has no power to make any order for the custody of a child while the suit is pending. This contention is not well taken. It is true the circuit court acquires its jurisdiction in divorce suits by force of the statutes; but it is to be observed that this jurisdiction is two fold. The divorce and alimony part of this jurisdiction belonged to the ecclesiastical courts in former times in England; and the power to make awards as to the custody of children is a part of the ancient chancery jurisdiction. The circuit court exercising ecclesiastical powers in divorce proceedings is governed, as to the substantial rights of the parties, by the common-law practice in such cases, except as modified by statute law. State ex rel. v. St. Louis Court of Appeals, 99 Mo. 216, and cases cited. And in like manner the circuit court in administering this particular chancery jurisdiction granted by the statute will be guided by chancery practice, except as modified by the statute. While the statute does not in terms say the circuit court shall have power to make ad interim orders concerning the custody of children, still the general power granted by the statute carries with it the power to make such temporary orders. Scoggins v. Scoggins, 80 N. C. 318. Statutes like the one in question exist in many, if not most, of the states; and it is generally held that they give the court ample power to make orders concerning the custody of children while the suit is pending. Indeed the cases go much further and hold that the court has the power to modify the final decree as to custody of children from time to time as circumstances-change. 2 Bishop on Marriage, Divorce and Separation secs. 1183 and 1187. The procedure in such cases is analogous to that concerning an application for and allowance of alimony, lb. 1206.

It is again urged that the pendency of the divorce suit in the circuit court does not give that court jurisdiction to determine the question as to the custody of the child, because of the agreed fact that custody of the child is not prayed for in the pleadings by either party in that suit. The answer to this is that jurisdiction of the parties to that suit carries with it the incidental power to make an award as to the custody of the child. The petitioner here, who is the plaintiff there, can apply for an order whenever she sees fit to do so; and that court can on the final hearing of that case make a proper disposition of the child, though the petition contains no prayer therefor. A decree of divorce would necessarily affect the welfare of the child, and it is the -duty of the court to protect it, and hence it is that the court can make a proper order concerning its future custody though the petition contains no prayer to that end. 10 N. J. Eq. 261.

The real and in fact the only object of this writ is to have settled the question as to which of the parties shall have the custody of this child; and it follows from what has been said that the circuit court has full and complete power to settle that question in the pending divorce suit. The general rule is that, where one court has acquired jurisdiction over the parties and subject-matter of the suit, other courts will not interfere by the writ of habeas corpus, while the suit is pending and undetermined; Church on Habeas Corpus, sec. 265. If a court having jurisdiction of the parties in a divorce suit has the further power to award the-custody of children to the party entitled thereto, the question as to such custody will not be adjudged on a. writ of habeas corpus by another court, but the parties will be remitted to the court in which the divorce suit is pending for directions as to the custody of the children pending that suit. In the Matter of DeAngelis, 1 Edmonds’ Select Cases, 476; 2 Bishop on Marriage, Divorce and Separation, sec. 1184. While Mr. Bishop-says the rule is not quite so clear when there has been no order for the temporary custody of the child, still we hold that the rule as above stated is the true one,, even where no such temporary order has been made. This proceeding should therefore be dismissed and the parties remitted to the circuit court for proper orders as to the custody of the child pending the diyorce suit.

There is nothing in section 5415 of fkehabeas corpus act which calls for any different result. It is there provided, in effect, .that in all proceedings on habeas corpus, between husband and wife for the custody of' their children, the court may award the custody to the complainant or other guardian, as shall be deemed best; and the order shall remain in force during any period which shall be fixed by the court, within the-minority of the child. This section is general, and does not in the least interfere with the jurisdiction and powers of the circuit court to mate such orders in divorce suits. That power remains unaffected by the habeas corpus act.

As we hold this court ought not to take jurisdiction of this application, it is not necessary to speak of the question presented by the first of the agreed facts. Writ denied. Barclay and Sherwood, JJ., dissent. The other judges concur.