In re Wrisley, 126 Mich. 109

In re Wrisley

126 Mich. 109 | Mich. | 1901

Grant, J.

We have here two decrees, in one of which Mr. Wrisley obtained a divorce from his wife, and in the other of which she obtains a divorce from him, and each is awarded the custody of their child, Gladys. He appeared specially in the suit brought by his wife in the Kalamazoo circuit court, and moved to set aside the decree on the ground that the court had no jurisdiction to render it. The motion was granted, and the decree set aside. At the same time that court, considering that it had the power to retain the suit and to issue an alias subpoena upon the original bill, retained jurisdiction, issued an alias subpoena, and granted an order giving the custody of the child, during the pendency of the suit, to her. He paid no further attention to that suit, but proceeded with his own in Charlevoix county. She, insisting that the Charlevoix court had no right to proceed, because of the pendency of hep suit in the Kalamazoo circuit, brought for the same cause of action against the same party, appeared in the suit in Charlevoix county, and entered a plea in abatement, setting up the suit pending in the Kalamazoo circuit court. The cix’cuit court for Charlevoix county decided that issue against her, held that it had jurisdiction of the case, and that the ■ Kalamazoo circuit did not have jurisdiction. Had she not interposed this plea in abatement, a question would arise that we need not now discuss. She voluntarily submitted the question of jurisdiction to the circuit court for the county of Charlevoix. It had the power to pass upon it. It did so, and the decree of that court is binding upon both the parties until reversed by an appellate court. The question is res adjudieata, and she cannot raise it in a collateral proceeding. Peters v. Youngs, 122 Mich. 484 (81 N. W. 263); 1 Black, Judgm. § 274; Elliott v. Peirsol's Lessee, 1 Pet. 328. The language of this court in Palmer v. Oakley, 2 Doug., at page 475 (47 Am. Dec. 57), sustains this view. *113We must therefore hold that Mr. Wrisley is entitled to the custody of the child under the decree in the circuit court for the county of Charlevoix. Should he not be a proper person to have the care, custody, and education of the child, that question can be determined in another proceeding.

The writ is dismissed, and the child remanded to the custody of Mr. Wrisley.

The other Justices concurred.