DocketNumber: 3 Div. 726.
Judges: Tiiomas, Somerville, Anderson, Sayre, Ner, Miller, Bouldin, Code
Filed Date: 12/10/1925
Status: Precedential
Modified Date: 10/19/2024
This is a petition for certiorari to the Court of Appeals to review its action in dismissing an appeal from an order in habeas corpus before the circuit judge for the custody of infants.
A preliminary observation may be made, as to such petition, proceedings or pleadings therein, that mere legal niceties are not favored. Murphree v. Hanson, 72 So. 437,
It should be observed that due process, required by the Constitution in legal proceedings in the state courts based upon a law not repugnant to the federal Constitution and conducted according to the settled course of such proceedings as established by the law of such state, includes due notice, a hearing, or opportunity to be heard, before a court of competent jurisdiction. Where the law of the state provides for an appeal in a case to the Supreme Court of that state upon well-recognized grounds, that procedure will be looked to in the determination by the federal court of whether the defendant has been deprived of his life, liberty, or property contrary to the Fourteenth Amendment. This amendment does not require that a state shall provide for an appellate review. Hurtado v. California,
In Woodward Iron Co. v. Bradford,
The state and federal decisions recognize that the right of appeal to the Supreme Court in habeas corpus suits and other cases is regulated by statute. Unless such further hearing is so provided that right does not exist under the common law. Smotherman v. State, 37 So. 376,
From the foregoing are the decisions that, appeal not being given in habeas corpus, there was the right to apply successively to the different courts or magistrates for the writ (Ex parte Croom May,
To a better understanding of the case presented, it should be observed that the petition for habeas corpus for the custody of the minor was addressed to a circuit judge, and the order thereon was final and conclusive of the rights of petitioner and in favor of respondent as to the custody of the child. That is to say, it was a final judgment in the premises, so long as the facts are unchanged, until the material circumstances of the case warrant another judgment, or until modified or reversed by review, or, in the exercise of the court's right of superintendence and control over inferior jurisdictions, the same is modified or reversed. Const. § 140; Woodward Iron Co. v. Bradford,
That the right of appeal existed was recognized in Powell v. Johnson (Ala. Sup.)
Before answering the question of the right of review vel non by appeal in the instant case, it should be observed that our decisions in habeas corpus cases generally have not made clear the distinction between petitions, orders, and appeals in habeas corpus proceedings civil in nature — as to determine the custody of children, debtors, witnesses, seamen, and the like — and those in criminal cases for bail or the discharge of one under indictment for crime. A casual consideration of the reasons for the distinction will suggest that the former is in material respects an action partaking of the nature of a private suit, in which the public primarily has no concern, and the rights of the respective parties and the subjects of the petition (the child or children) are determined as a civil action. The judgment rendered is a final adjudication in regard to such custody (McKenzie v. Jensen, 70 So. 678,
Further illustrating the nature of such petition and order in habeas corpus for the custody of children, it is held that the awarding of the custody of a child to petitioner is self-executing (McEntire v. McEntire [Ala. Sup.]
The distinction between habeas corpus for the custody of children as a civil action and that by a defendant for relief from an illegal custody or for bail (criminal) is indicated by Mr. Chief Justice Hayes as follows:
"* * * An examination of the authorities convinces us that the weight of authority holds that there is a distinction between a habeas corpus proceeding brought to secure the release of a person from restraint and a similar proceeding instituted to determine the right to the custody of children. In the former class of cases, a decision on one writ is not a bar to the issuance of and proceedings upon a second writ; but an order in a proceeding to determine the right to the custody of a child, where the facts in the proceeding are the same as the first, is res adjudicata. The rule has been stated by one court as follows:
" 'In a proceeding for habeas corpus, where controversy arises over the custody of a child, the real issue is one between private parties, contesting the question of private rights, in which there arises no question of a personal liberty, and in consequence all matters in issue arising upon the same state of facts determined in a prior proceeding, should be regarded as settled and concluded. However, where many facts appear to be presented by the record which may not have been presented to the judge at the former hearing, and where possibly other facts have occurred since the former hearing, this court will examine the entire matter.' In re Hamilton, 71 P. 817,
In this jurisdiction the nature and effect of a judgment in habeas corpus remanding a prisoner under a charge for crime is shown, as we have indicated, in the right to make a second application to this court to revise the action of the lower court in remanding the prisoner. Ex parte Croom May,
"The right to the custody of a child who is a bastard, and whose mother is dead, cannot be contested in this way. The child is interested in such a contest, and is entitled to a jury to determine the facts of the case, and to appeal, if there is error in the proceedings; which is not provided for in a case made on a petition for habeas corpus. * * *
"The application for the writ of habeas corpus, in favor of the person imprisoned, or under restraint, can be repeated as often as the restraint is found to be illegal; and the mere discharge from the illegal restraint is, under our statute, the sole object of the writ. * * *"
Notwithstanding this difference of opinion that formerly existed as to the proper process to test the right to the custody of an infant, the weight of the authorities is that a final decision or order by a court of probate in habeas corpus proceedings to determine the right to the custody of an infant, or when the same is tried before a judge of probate, is an appealable decision or order. McKenzie v. Jensen, 70 So. 678,
As heretofore indicated, the instant order and appeal from the circuit judge on habeas corpus directing the custody of infants was invoked by petition for habeas corpus and of like proceeding and order, as was conceded, presented by appeal, and affirmed in Powell v. Johnson (Ala. Sup.)
The provision for appeal from proceedings as to remedial writs is given a place in chapter 257 of the Code of 1923 as section 6085. It is preceded by general provision for appeals to the Supreme Court on all final judgments or decrees "of the circuit court, or courts of like jurisdiction, or probate court, except in such cases as are otherwise directed by law" (section 6078); appeals from certain interlocutory decrees — as sustaining or overruling demurrer to a bill in equity — (section 6079); appeals on orders dissolving or discharging injunctions (section 6081); appeals from orders appointing or refusing to appoint receivers (section 6082); appeals from judgments overruling motions to dismiss or quash attachments or sustaining demurrers to pleas in abatement to attachment, etc. (Section 6083 [Melvin v. Scowley (Ala. Sup.)
"Appeals from Proceedings as to Remedial Writs. — Appeals may be taken to the Supreme Court from the judgment of the judges of the circuit courts, on application for writs of certiorari, supersedeas; quo warranto, mandamus, and other remedial writs, upon plaintiff or defendant giving security for the costs of appeal, approved by the judge trying the same, within thirty days from the day of the judgment; but such appeal shall not operate as a supersedeas of the judgment, unless bond with sufficient sureties be given by the appellant, payable to the appellee, in such sum as the judge hearing *Page 75 the application shall require, conditioned to pay all damages thereby sustained." Code, § 6085.
Then following are provisions for appeals from partial settlements of estates and decisions on motions for new trials (sections 6087, 6088), and from judgments or decrees of courts that have been abolished by law within the time provided for an appeal (section 6087) as set forth in the chapter on "Appeals."
When the foregoing provisions are considered with the statute for appellate review of all appeals (section 6078) from judgments and orders of probate courts and judges thereof (sections 6114, 6115, 6117, 6125), that in habeas corpus in criminal cases (section 3238), and appeals from proceedings as to remedial writs (section 6085), it is apparent that the public policy of the state was declared in favor of appellate review in important civil and criminal litigations as indicated, and as presenting a system of administration of the laws.
The codification of section 3238 in its changed form from that of section 6245 of the Code of 1907 does not now touch appellant's status. In its original form, providing, as it did, the right of appeal by "any party aggrieved" (Code 1907, § 6245), it was broad enough to accord the right of appeal when the custody of infants was for decision, if such right did not otherwise exist.
We need not pass upon the constitutionality of section 3238 as affecting the right of a defendant to bail, since no such question is presented by the change adverted to in Ex parte State ex rel. Shirley,
Under the present statute as to habeas corpus (Code, § 4305 et seq.), any person who is imprisoned or restrained of his liberty in this state on any criminal charge or accusation, or under any pretense whatever (except detention by virtue of process by the United States Courts or judges thereof, etc.), may prosecute a writ of habeas corpus according to chapter 151 of the Code of 1923, pp. 370, et seq. — persons confined in jail under peace proceedings (section 4306), persons confined as insane (section 4307), and persons confined for bail (chapter 83 et seq.; Const. § 16). The right of appeal is declared as to such criminal cases, or cases in the nature thereof, in section 3238 of the Code.
It will be noted that section 6085 of the Code of 1923 comes unchanged (except as to city courts) from section 3923 of the Code of 1876. It was construed in Ex parte City Council of Montgomery in re Knox,
In State ex rel. Pinney v. Williams,
Cases for the determination of the custody of infants are not within the criminal laws, but are civil actions however the question may be presented, whether by bill in chancery, petition to a court, or petition for writ of habeas corpus. The primary control and custody of the infant is with the government, and delegated to the natural or legal guardians so long as they are fit and suitable persons for the purpose and it is to the best interests of the child so to remain in such custody. McDaniel v. Youngblood,
The decision in Powell v. Johnson (Ala. Sup.)
SOMERVILLE, J., concurs in the foregoing.
ANDERSON, C. J., and SAYRE, GARDNER, *Page 76 MILLER, and BOULDIN, JJ., are of opinion that the right of appeal exists under section 6078, Code of 1923.
It follows that all of the Justices concur in granting the writ.
Writ granted.
Pittsburgh, Cincinnati, Chicago & St. Louis Railway Co. v. ... ( 1894 )