256 P. 226 | Cal. Ct. App. | 1927
The petitioner, as the mother of three minor children, has applied for a writ of habeas corpus. In her petition she alleges that formerly she and C.J. McKean were husband and wife; that there were born as the issue of the marriage the three minor children above mentioned; that on the seventh day of May, 1926, the petitioner commenced an action for divorce; that the husband was duly served with summons and complaint, but that he did not appear and that his default was entered; that thereafter the divorce action came on for trial and an interlocutory decree was entered on the twentieth day of May, 1926; that the interlocutory decree was in the ordinary form and recited that the divorce was granted on the ground of the defendant's *582 extreme cruelty and it also contained an order awarding the custody of the minors to the mother and granting her $100 per month for the care, support, maintenance, and education of the children; that thereafter, on the twenty-seventh day of July, 1926, C.J. McKean appeared in the divorce action and applied for a modification of the decree, and among other things asked that he be awarded the custody of the minors and that the order contained in the interlocutory decree granting the custody of the minors to the mother and granting her maintenance be stricken out of the decree; that the application so made by C.J. McKean came on for hearing and a hearing was duly had and the application was submitted; that on the twenty-seventh day of November, 1926, the petitioner's attorney wrote to the trial judge a letter stating that if the ruling made on the husband's application should be granted that the wife intended to promptly appeal and requested a reasonable stay that the appeal might be perfected; that on the twenty-ninth day of November, 1926, the petitioner's attorney appeared in open court and repeated his request for a stay of execution for the period of forty-eight hours and the trial judge stated that said stay of proceedings would be granted; that in the afternoon of November 29, 1926, the trial judge made an order modifying the order contained in the interlocutory decree, which modifying order revoked the order theretofore made awarding the custody of the minors to the mother and granting her maintenance in the sum of $100 and in lieu of such order a new order was made by the terms of which the custody of said minor children was awarded for the period of six months to William E. Reddy and Mary E. Reddy his wife, and $75 per month was set as the cost of the care and maintenance of said minors; that said modifying order further provided that the petitioner should forthwith deliver the children to the sheriff of the city and county of San Francisco to be by him delivered to the Reddys; that said modifying order contained no recital to the effect that the parents or either of them were unfit or improper persons to have the custody of said minors; that during the morning of November 30, 1926, the said sheriff executed said modifying order by taking the possession of the minor children and delivering them into the custody of the Reddys and that said children have since said day been in the custody and control *583 of the Reddys; that the first notice the petitioner or her attorney had of the making of the said modifying order was when the sheriff appeared for the purpose of executing said order; and that the said modifying order was neither filed nor entered by the clerk until the morning of December 1, 1926, after it had been so served as above mentioned, and at that time that the wife promptly appealed from said order. Thereupon the petitioner prays that the custody of said minors be restored to her pending her appeal. The petition was presented to one of the justices of this court on December 7, 1926, and said justice directed that a writ issue made returnable before the court on January 10, 1927, at 10 A.M., "and in the meantime let the three children named in the petition be returned to the custody of the petitioner." A return has been filed by the terms of which it is recited that under the order dated November 30, 1926, the Reddys received the custody of the minors and retained such custody until the ____ day of December, 1926, when they were served with the said order so made by one of the justices of this court and that thereupon, to wit, the ____ day of December, 1926, they delivered the custody of said minors to the petitioner.
[1] The petitioner claims that the modifying order was ineffectual for any purpose until it had been filed and entered. (Code Civ. Proc., sec. 664.) That section does not refer to orders, but refers to judgments. There is no provision either in the constitution or the statutes which requires all orders of a court to be entered at length in its minutes in order that they may be effective. (Von Schmidt v. Widber,
[4] The petitioner further claims that the order was defective because it did not contain a finding that the parents were not fit and proper persons to have the custody of the minors. That attack may not properly be made in a habeas corpus
proceeding. (In re Lundberg,
[5] For the foregoing reasons we reach the conclusion that the Reddys had the lawful custody of the children at the time this writ was issued. This is true because the Reddys had obtained possession of the children by virtue of the execution of the said modifying order before the appeal from it was perfected. Having learned that the modifying order was thus executed before it was filed, petitioner might have asked the trial court to set aside and withhold the execution of the modifying order until she could have had time to perfect her appeal. In that case, after the appeal had been perfected, no further action of the trial court could have been taken pending the appeal looking to the enforcement of the modifying order. (Code Civ. Proc., sec. 946;Ex parte Queirolo,
The argument suggests itself that the modifying order is a continuing one and that for this court to leave the children in the custody of the Reddys now after the appeal from the order has been perfected is substantially and in effect a continuing execution or "further proceeding" within the meaning of that term as used in Code of Civil Procedure, section 946 But upon this point we are unable to distinguish the facts in this case from the ruling referred to by respondent in De Lemos v. Siddall,
There is authority to the effect that petitioner might apply to the court having jurisdiction of the appeal for an appropriate order fixing the custody of the children pending the appeal. (3 C.J. 1323, sec. 1450; Stricker v. Wakeman, 13 Abb. Pr. (N.Y.) 85; Burr v. Burr, 10 Paige (N.Y.), 166, 169; Tilley v.Washburn,
This writ was issued by one of the justices of this court, and at the time of issuing the same he made an order directing the custody of the children to be in the mother, petitioner, pending the judgment upon this writ. This order was made under the authority of Penal Code, section
The judgment of this court upon the return of the writ is that the Reddys are entitled to the custody of the children not by force of the order of this court, but by force of the modifying order made by the trial court. The effect of giving this judgment upon this writ is to terminate the force *586 and effect of the temporary order made at the time the writ was issued, and it is therefore ordered that the children be restored to the possession of the Reddys and that the writ be discharged.
Koford, P.J., concurred.