Petitioner was adjudged guilty of contempt by the Circuit Court of Bates County for refusing to obey an order of that court, and was sentenced to imprisonment in the county jail. He seeks release therefrom on the ground that the court was without jurisdiction.
In March, 1919, the wife of the petitioner filed a bill in equity against him in the Circuit Court of Bates County for maintenance and the custody of their three minor children. A decree was rendered in her favor. Upon an appeal to the Kansas City Court of Appeals the judgment of the trial court was affirmed and the custody of the children awarded to the mother. [
Petitioner then applied to the Supreme Court for a writ of prohibition to prevent the trial court from taking further cognizance of the suit in which it had rendered judgment against him, and especially from proceeding against him for contempt for his failure to surrender the custody of the children to their mother. The application for this writ was denied.
Upon the failure and refusal of the petitioner to comply with the judgment of the trial court he was adjudged guilty of contempt and ordered into the custody of the Sheriff of Bates County to be imprisoned in the county jail until the further order of the court, or until otherwise discharged by due process of law. Petitioner thereupon applied to the Supreme Court for a writ of habeas corpus alleging as sole ground therefor, as in the applications for certiorari and prohibition, a lack of *142 jurisdiction of the trial court in equity to entertain a proceeding to determine and award the custody of minor children.
It is not necessary to set forth in detail the facts adduced in evidence upon which the trial court bas.ed its finding in rendering judgment herein and in thereafter ordering the petitioner’s imprisonment for his failure to comply therewith. These facts, if not expressly conceded, are not attempted to he denied and are made a part of the sheriff’s return. We also find them correctly set forth with all n.ecessary fullness in the learned opinion of the Court of Appeals by ElusoN, J. Their recital here would consequently only serve to emphasize the moral turpitude of the petitioner and add, if possible, to the radiant lustre of hi's wife’s life as manifested by her fidelity to duty.
Only so far, therefore, as it may be deemed necessary to clearly define the character and render evident the attitude of the petitioner will the facts as found by the trial court be stated.
The petitioner, his wife, and three small children, lived in Colorado. The youngest child became seriously ill and so continued for many months. The mother attempted during all of this time to give the child such attention as its condition required, and at the same time to care for the other children and perform all the duties of a housewife. As a result her health broke down and she suffered from nervous prostration. After months of treatment she was taken by petitioner to her father’s home, the children then being cared for by his mother. During the latter part of the wife’s illness a nurse was employed to care for the wife. The petitioner became infatuated with this woman, afterwards shown to be without character. Upon the wife’s recovery and her repeated importunities that the petitioner provide a home for her and the children, he refused to do so, ineffectually sought to obtain a divorce or to induce the wife to obtain one, and continued his clandestine relations with the woman, who, in the meantime, had gone *143 to Rich Hill, Missouri. Upon the refusal of the petitioner to establish a home for his wife and children and his cruelly informing the wife that he did not intend to live with her, she brought a suit in Colorado for maintenance and the custody of the children. Upon being' served with summons in that proceeding he took the children, then at his mother’s, and came with them to Rich Hill, where he proceeded to establish a home and to install therein as mistress the woman with whom he had become infatuated, placing his' children in her charge. This woman’s immorality was a matter of record of which the petitioner had knowledge. This condition of affairs existed at the time the wife brought the action in Bates County and continued after the custody of the children had been awarded to her, when the petitioner spirited them away in violation of the court’s decree, and hence the adjudication in contempt from which petitioner seeks release.
The right of the petitioner to the writ herein is dependent upon the jurisdiction in equity of the trial court. This jurisdiction is the question primarily to be determined. Other inquiries determinative of that jurisdiction may properly be considered.
An illuminating opinion by Gantt, J., in Rice, Stix
&
Co. v. Sally,
In Grimes v. Reynolds,
From all of which it follows that a wife may, as a
femme
sole, sue her husband as she may others in law
*145
as well as in equity, except that slie cannot maintain an action for a personal tort against Mm. [Rogers v. Rogers,
It is true that the findings of the trial court not only considered and disposed of the personal status hut the property rights as well of the children. TMs might he regarded as foreclosing the necessity of a consideration of the general inquiry; hut that no phase of the court’s equity powers may not he subjected to review, we consider it. If not expressly stated, the intimation appears in numerous cases that a complainant’s person is heyond the scope of the powers of a court of equity. However, this conclusion must not be taken literally. “If so,” as was forcefully said by a modem commentator (Burdett A. Rich), “it would make the system of equity suitable only to a semi-savage society which has much respect' for property but little for human life. . Our equity jurisprudence does not deserve so severe a reproach.” "While it has done much for the protection of personal rights, it has been reluctant to admit it. The existence of this power rendered evident by its frequent exercise, cannot be affected by the reluctance of the courts in admitting it. Instances illustrating the exercise of equity jurisdiction for the protection of personal rights may by the curious be found in an exhaustive note appended to Chappell v. Stewart, 37 L. R. A. 783, and in 8 Sol. Jour. 158, 179, where the cases ruling affirmatively upon the court’s power in this respect are carefully collated. These cases, supplemented by numerous others herein cited, *146 we will consider in tlie discussion of the immediate question at issue. They will he found to authorize the conclusion that courts of equity, clothed as they are with this general pow.er, may include in its exercise the determination of the personal rights of infants. If this conclusion he correct, jurisdiction in the instant case may properly he predicated thereon.
But if resort be had to the illogical refuge that the exercise of the court’s power as applied to the •ease at bar, is not included within and made a part of its general power, then the propriety of that exercise may he sustained on the ground that the protection of infants, even from their parents, is one of the exceptions to the limitation under discussion and constitutes one of the well established grounds for the exercise of equity jurisdiction in the protection of personal rights. [Shelley v. Westbrooke, Jac. Eng. Ch. R. 266; Warde v. Warde, 2 Phill. Ch. 786; Creuze v. Hunter, 2 Cox, Ch. Cases, 242; Thomas v. Roberts, 3 DeG. & S. 758; State v. Grisby,
It will be seen not only from the lucid text of Pom-eroy but from the adjudicated cases, that the inherent power of a court of equity over the persons and estates of infants is very wide. [United States to use of Hine v. Morse,
The infant’s ownership of property is not essential to the existence of jurisdiction. We have shown that this question is eliminated at bar on account of the findings of the trial court. If not eliminated, an allegation in the pleadings and the trial court’s findings in regard thereto might he regarded as mainly formal, and a failure to show the existence of property could not he successfully urged for the purpose of defeating the jurisdiction. In England as well as in this country, well considered cases sustain the exercise of this jurisdiction although it affirmatively appeared that the infants had no property. [Johnstone v. Beattie, 10 Clark
&
Fin. 42; Cowls v. Cowls,
In this connection a learned Federal judge made the following pertinent statement: “If a court has jurisdiction where the matter in dispute is a mere right of property, why should its jurisdiction not extend to a more important controversy where the custody and control of' a child is the matter in dispute?” [Bennett v. Bennett, Deady (U. S. Dist. Court Rep.) 321.]
*149
In the evolution of equitable jurisdiction we find that, in a proper case where it appears that the welfare of the infant will be best promoted by removing it from the custody of its guardian, this power may be exercised, although it may result in taking the child from its own parents or in placing it in the custody of one to the exclusion of the other. The paramount right of a father to such custody, upon which this court has explicitly ruled (State ex rel. Crockett v. Ellison,
Nor is the power of the court to be impaired because the wife, although entitled to a decree of separation, waived her right thereto and insisted only that the husband be required to make provision for herself and the children and that she be awarded the custody of the latter. Cases which hold that a court’s right to the determination of the custody of children is dependent upon a decree of divorce will be found upon an .examination to be limited to those in which the right to the custody was sought as an incident to the suit for the decree, and not, as in the instant case, to the purely equitable ground of the unfitness of the father to continue in the exercise of that right. In the majority of the cases cited in this opinion in support of the court’s .jurisdiction the gravamen of the action was not to secure a decree of divorce but to determine the custody of the children. In Wellesley v. Wellesley, supra, which may be considered as one of the leading cases on the subject, the purpose of the suit was to determine the custody of minors. In numerous other cases where a decree of separation was sought and denied, the courts have nevertheless awarded the custody of minor children to one parent or the other as the facts warranted. [Horton v. Horton,
“The ascertainment and enforcement of the custody of minor children by the use of the writ of habeas corpus is of an equitable nature, and in. such cases the question of personal freedom is not involved, for an infant, from humane and obvious reasons, is presumed to be in the custody of someone until it has attained its majority; and the court, when asked to restore an infant, is not bound by any mere legal right of parent or guardian, but is to give it due weight as a claim founded on human nature, and generally equitable and just. Therefore these cases are not decided upon the legal right of the petitioner to be relieved from unlawful imprisonment or detention, as in the case of an adult, but upon the court’s view of th.e best interests of those *152 whose welfare requires that they he in custody of one person or another; and hence a court is in no case hound to deliver a child into the custody of any claimant or of any person, hut should, in the exercis.e of a sound judicial discretion after a careful consideration of the facts, leave it in such custody as the welfare of the child at the time appeal’s to require.” [12 .R. C. L. 1215.]
Mr. Justice BeNSON, of the Supreme Court of Oregon, in discussing this question says, in effect: The nature of the investigation, the peculiar latitude involved in the inquiry, the nature of the relief sought and granted, present an irresistible demand for the intervention of a court of equity. In the absence of our statute it must he conceded that a court of equity would have jurisdiction ... It has been held, however, that no Legislature can abrogate or impair the efficiency of the writ, and its use as it was available at common law is still available in courts of equity; and the fact that the Legislature has seen fit . only to provide a procedure for its exercise in cases for which it was originally designed and is silent as to the procedure in cases calling for the exercise of chancery powers, it follows that.proceedings in equity are still available. [Turner v. Hendryx,
Chancellor SteveNsoN, of the Court of Errors and Appeals of New Jersey, in speaking for that court in a case involving the same issue as that at bar, said:
“It is not the limited jurisdiction upon habeas corpus which is exercised by the justices of the supreme court as well as the chancellor which is invoked in this case. The petition is not directed towards freeing this little child from imprisonment. The pleadings set forth in detail the claims of the contending parties to the custody of the infant, and the proofs have been directed toward sustaining and defeating respectively each of these hostile claims. The broad jurisdiction invoked is the ‘general equity jurisdiction over the custody of the person of infants which the chancellor exercises as *153 parens patriae’ (Citing cases).” [In re Flynn, 87 N. J. Eq. l. c. 414.]
These ruling’s authorize the conclusion that if another form of action than that of a hill in equity has been resorted to — for example,
hateas corpus
— the chancery powers of the court must he invoked to determine the issue. [Campbell v. Campbell,
From all of which it appears that the petitioner is held in custody upon the judgment of a court of competent jurisdiction and that-the writ of habeas corpus was improvidently issued and should be quashed and the petitioner remanded to the- custody of the sheriff of Bates County. It is so ordered.