36 Mo. 197 | Mo. | 1865
delivered the opinion of the court.
This case comes here by appeal from the Circuit Court of Platte county, upon a judgment or decree rendered therein upon a petition for a writ of habeas corpus. It appears that a writ of habeas corpus was issued upon the petition; that the defendant made return to the writ, and that a hearing was had upon it, before the court, concerning the custody or alleged restraint of three minor children of Mason and Mary Ferguson, of the ages respectively of one, three and seven years; the eldest being a daughter — the other two, sons. Upon the hearing, the court assumed jurisdiction, not only to determine the question of discharging, or remanding, the persons alleged to be restrained of their liberty, but of various matters of guardianship, the appointment of trustees, and the disposing of the father’s property for the support of the children ordered into the custody of the mother by a judgment or decree, which must be regarded as 'a final judgment on rights and interests of the parties, which were in no way judicially involved in a proper disposition of the habeas corpus. In respect of the persons restrained, the decree discharged the daughter, and ordered her into the custody of the mother, and remanded the two younger children to the custody and care of the father, upon certain conditions to be performed by him, and if not performed as ordered, then to be seized by the sheriff and delivered over to the mother; and certain sums of money were ordered to be paid by the father to trustees appointed, for the support of the children under her care. This part of the proceedings was so palpably erroneous as to require no discussion beyond a bare statement. The court had power to hear and determine the matter arising upon the petition for a habeas corpus, as such, in a summary manner, and to discharge, or remand, the persons restrained of their liberty, with some latitude of discretion as to which parent, under all the circumstances, was the most suitable and proper person to have the care and custody of children of tender age
So far as the decision discharged, or remanded, the persons restrained, this court has no appellate jurisdiction to interfere with it, and no appeal lies to this court in such case. (Howe v. The State, 9 Mo. 682.) In this respect, the decision is not of the nature of a final judgment. It concerns only the present actual condition of things, and the order of the court is at once executed and accomplished beyond recall; and in reference to any new state of facts existing after-wards, the parties have the same remedies as before, whether by writ of habeas corpus, or other proceeding, in any court of competent jurisdiction; and the courts are always open to them.
The case was argued at length, and with much ability, upon the propriety of the action of the court below in disposing of the custody of the minor children, and the respective rights of the father and mother therein, under the circumstances disclosed.in the evidence. We cannot undertake to review this part of the case here ; as to that, we must leave the decision where it stands. Its work is already accomplished. But so far as the court assumed jurisdiction over other matters, the proceeding must be regarded as if it had been upon a petition for relief in some cause of action at law or in equity, and in this respect the decree rendered must be treated as a final judgment of the court, on which an appeal will lie; and as such, we take jurisdiction to examine and correct the errors appearing by the record. And on this, it will be sufficient to say, that, by the laws of this State, the Circuit Court had no power or jurisdiction, on a petition for a writ of habeas corpus, to hear and determine of matters of guardianship, the appointment of trustees, the disposition of the property or moneys of the parties, the making of provision for,the support of the children placed in the custody of the mother, or the support of the wife living
The other judges concurring, the judgment is reversed and annulled in all respects, except in so far as the same discharges the said Elizabeth Ferguson and orders her into the custody and care of her mother, and remands the said Henry C. Ferguson and Winfield C. Ferguson into the custody and care of their father, in which regard tire same will remain unaffected by this appeal.
