68 So. 351 | Ala. | 1915
In the chancery court of Marshall county on November 14, 1913, a decree of divorce was awarded appellee, Maggie Hayes, against appellant John Arthur Hayes, on the ground of “actual violence upon her person,” under provision of section 3795 of the Code, and in the decree the appellant was aAvarded the custody of a child named in the bill “until the further order of the court.” In the same court on May 21,1914, a decree or order was entered “by consent of the parties and solicitors in open court,” providing for periodical visits by the child to the mother, and requiring appellant to permit such visits, etc., and the order expressly stated that it was “subject to change or modification by the court as it may deem proper at any time in the future.” On June 27, 1914, appellee filed her petition in said court, setting up the remarriage of appellant, and that the child Avas being denied the association and attention of the mother, and being totally estranged and her affection alienated from the petitioner, her mother, and that appellant refused to permit the child to visit petitioner, as Avas expressly provided in the former order of the court. The petitioner prayed a modification of the former order or decree of the court in respect to the custody of said child, to the effect that petitioner should be given control of said child, that due notice issue to said John Arthur Hayes, and that a writ be issued for Hayes to show cause why he should not be committed for contempt. The petition appears to have been set down for a hearing on July 10, 1914, and a regular summons appears to have been issued and served.
From this decree or order of July 10, 1914, the said John Arthur Hayes prosecutes this appeal, and the only assignment of error relates to the rendition of this decree.
(1) It is insisted by counsel for appellant that the decree or order is a final one, coming within the provisions of section 2837 of the Code- of 1907, and that it was rendered in vacation, without the consent of the parties, without any decree pro confesso; and in this connection we are cited by counsel to the case of Adams v. Wright, 129 Ala. 305, 30 South. 574. The case cited, however, would support the proposition that a decree rendered in vacation, without consent of the parties, or without coming within the provisions of any statute or rule governing the same, Avould be void and would not support an appeal, and that consequently the appeal Avould have to be dismissed.— Wertheimer v. Ridgeway, 157 Ala. 398, 47 South. 569; Gartman v. Lightner, 160 Ala. 202, 49 South. 412. We do not understand the case of Johnson v. Johnson, 182
The decree here appealed from shows on its face that it was rendered in vacation, without any appearance or consent, and such is the insistence of counsel. It follows, therefore, that the argument of counsel for appellant that the decree of July 10, 1914, was a final decree, and his further contention that it was rendered in vacation, without consent of parties and without the authority of statute or rule permitting the same, would logically lead to a dismissal of his appeal.
(2) “The Supreme Court is without jurisdiction to entertain an appeal from orders of the lower court in a pending suit in chancery, unless such decree or order is either a final decree or is one of the certain interlocutory orders provided by statute.” — McElroy v. Gadsden, L. & I. Co., 126 Ala. 184, first headnote, 28 South. 660] Ex parte Jonas, 186 Ala. 567, 64 South. 960.
It is not insisted, and it could not be successfully done, that the decree of July 10th was such an interlocutory order or decree named in the statute from which an appeal may be prosecuted. From either viewpoint, therefore, it is clearly seen that the appeal must be dismissed.
(3, 4) While this might dispose of the cause, and a further discussion may be unnecessary, yet we wish to make it clear that we do not intend to indicate by what Is here said that the decree of July 10th was in any sense such a final decree as would support an appeal. On the contrary, we entertain the view that it was a decretal order of an interlocutory nature,- which the chancellor was authorized to enter, and from which the statute has' authorized no appeal.
In McGough v. McGough, 136 Ala. 170, 33 South. 860, it was said: “The decree in such cases, in awarding the custody of the children, while final in determining the present rights of the parties. * * * should be left open to future control and modification by the court, as subsequent conditions and circumstances might require for the good of the children, who are considered, in a sense, the wards of the chancery court.”
A court of chancery has jurisdiction, independent of any statute, over the custody of infant children. — Bryan v. Bryan, 34 Ala. 516; Decker v. Decker, 176 Ala. 299, 58 South. 195; Cornelius v. Cornelius, 31 Ala. 479; 3 Pom. Eq. Jur. 1304, 1305. The authorities also recognize the power of the chancery court to modify any order or decree concerning the custody of the infant, as in the sound discretion of the court may seem to be for the best interests of the child. — Decker and Cornelius Cases, supra; 14 Cyc. 819.
A reading of the authorities demonstrates that, a court of chancery once in a proper proceeding-having acquired jurisdiction over an infant as to his custody and control, such infant becomes the ward of the court, and it is, in a sense, a continuous jurisdiction; the welfare of the child being the question of paramount importance, the parties to the suit being of secondary consideration. Being mindful of these principles, the chancellor, in each decree rendered was careful to leave the question of the care and custody of the child open for future consideration, and the order of July 10th itself discloses that the change of custody was made “until the further orders of the court.” That, a chancellor once having acquired jurisdiction over the person of the infant, it thereby becomes the ward of the court, and he may, in vacation, make such order or decree in regard thereto as in his sound judgment or discretion the welfare of the child might dictate, is, it would seem, clear; and also it appears here that the orders made were of an interlocutory nature; and. such orders, no appeal from which has been provided by statute, may be reviewed by mandamus proceedings,
(5) It is generally recognized that rulings of a court or officer, which rest largely in discretion, are not reviewable by appeal, except for an abuse thereof. — Elliott’s Appellate Prac. § 598; 2 Ency. Pl. & Pr. 410. That such orders have not been, by the lawmakers, made subject to appeal, seems to be consonant with reason and common sense, for, if such were the case, it can readily be seen that the child, the ward of the court, might materially suffer by delay and consequent supersedeas of the order of the court or chancellor made for his welfare, and which might call for immediate obedience. The order of July 10th expressly states that the order made as to the custody of the child is “until the further order of the court” (although we do not intend to indicate that this was essential to be so stated in the decree), and, by the same proceedings had for the petitioner in this case, the appellant here could have made application to the chancellor in due time for such interlocutory order as the chancellor might deem for the interests of the child. This course, however, he does not appear to have pursued, but insists that a modification of the former decree was without authority.
(6) This insistence, even if followed, would disclose that appellant has mistaken his remedy, as it has been said that: “When the chancellor improperly sets aside or modifies at a subsequent term a final decree rendered at a former term, the remedy is by mandamus, and an appeal does not lie.” — Cochran v. Miller, 74 Ala. 50.
As previously stated, however, we are of the opinion that, in the exercise of the peculiar jurisdiction
The appeal is dismissed.
