Mitchell v. Powell

Ethridge, J.,

specially concurring:

Only two issues are necessary to the disposition of this case: (1) Was the May 1964 petition of the Powells (appellees) in substance a suit under Mississippi Code Annotated section 1263.5 (1964 Supp.) to adjudicate custody of this child, because of material changes in circumstances since the 1963 habeas, corpus judgment? And if so, (2) Did the evidence support the decree of the chancery court finding such material changes, and awarding custody of appellees?

After a lengthy discussion of the law of habeas corpus, the controlling opinion concludes that section 1263.5 was the substantive basis of the suit filed by the Powells. Miss. Laws 1960, ch. 268. I agree with that conclusion, and also with the determination that appellees have not shown a material change in circumstances since the habeas corpus judgment.

These two issues decide this case, so it seems to me that the explanation of the effects of a habeas corpus judgment, in section I of the controlling opinion, is not necessary and is obiter dictum. Code section 1263.5 was intended to give the chancery court independent jurisdiction of suits for the custody of minor children. This implements its constitutional power in this respect. Since the controlling opinion holds this to be true, and that appellees’ petition falls within the statute, I think, with deference to my brethren, that any discussion of habeas corpus is unnecessary and irrelevant.

Gillespie, J., concurs.