267 P. 101 | Cal. | 1928
In a proceeding in habeas corpus the court below awarded the custody of Agnes Patterson Bruegger, *170 a minor, to her father, the petitioner for the writ. A motion is now made to dismiss the appeal taken by the maternal grandparents, respondents in the court below, upon the ground that there is no right to an appeal in a matter of this character, for which reason, it is contended, the court has no jurisdiction to entertain the proceeding.
[1] Until the enactment of section
Appellants contend that our decisions deal only with cases involving proceedings instituted to secure the release of persons from restraint, and that there is a distinction between such cases and proceedings brought to determine the right to the custody of children. Such a distinction has been drawn by courts in a number of other jurisdictions, where it has been held that an appeal will lie from an order entered in habeas corpus
proceedings fixing the custody of a child. Those courts, while recognizing the generally accepted rule that in proceedings brought to secure release from imprisonment or restraint a decision on one writ is not a bar to proceedings upon another writ, hold that where the facts in a proceeding brought to determine the custody of a child are the same as those determined in a previous proceeding, the former order is res adjudicata.
(Jamison v. Gilbert,
[2] The primary purpose of the writ of habeas corpus is to provide a summary and speedy mode of inquiring into the legality of imprisonment or restraint. Incidentally, in its application to children, the child's welfare may be inquired into; but the writ would be deprived of its effect if an order made pursuant to the inquiry can be suspended, and the person or parties affected can be compelled to undergo the delay attendant upon an appeal to the higher court.
The motion is granted and the appeal is dismissed.
Langdon, J., Richards, J., Shenk, J., Curtis, J., Preston, J., and Seawell, J., concurred. *172