Whittier v. McFarland , 79 Vt. 365 ( 1906 )

Watson, J.

The petition alleges among other things that the petitionee and the petitioner were formerly husband and wife; that as the fruit of this union Blanche McFarland was born unto them and is now fifteen years of age; that a bill of divorce was granted to the petitionee by the county court within and for the county of Lamoille, and! the custody of the minor child was given' to the petitionee, but that the child always lived with and was supported by 'the petitioner until the twenty-first day of March, 1905, when a writ of habeas corpus was issued, 'and upon hearing the custody was given to the petitionee. These allegations are not denied by the plea in abatement, hence they stand admitted. The plea sets forth in substance that habeas corpus proceedings were brought before a judge of the Supreme Court to determine the same questions involved in this case, a hearing had and a judgment rendered therein, and that by said judgment those proceedings are still pending before said judge with full and complete jurisdiction in the premises, etc.

This plea was properly adjudged insufficient on demurrer; The court by which the divorce was granted, at the time of granting’ it, had the power to make such order or decree concerning the care, custody and maintenance of the minor child as the circumstances required, and by statute it retained jurisdiction of this subject-matter and could at any time thereafter, on petition of either party, annul, vary or modify the order áo made, or make such other or further decree respecting the care, custody and maintenance of the child as it might deem expedient. V. S. ’ 2698. A petition for this purpose, even though it be not in terms so made, will be treated as a further proceeding in the case' in which the divorce wlas granted, and that cause should be brought forward on the docket. Andrew v. Andrew, 62 Vt. 495, 20 Atl. 817.

Since the county court for Lamoille county had and retained jurisdiction of the subject-matter for such purpose, its jurisdiction could neither be superseded nor taken away by subsequent habeas corpus proceedings before a judge of the Supreme Court.

It is urged that a judge in such proceedings has concurrent jurisdiction with the county court of questions respecting the care and custody of minor children. If this be true, — a question we do not decide, — it will not avail the petitionee in this case; for it is a well established rule that in cases of concurrent jurisdiction the court first acquiring it will retain it to the end, to the exclusion of other tribunals. Bank of Bellows Falls v. The Rutland and Burlington R. R. Co., 28 Vt. 470.

Judgment affirmed.