Lassiter v. Wilson
93 So. 598
Ala.
1922
Check Treatment
McCLELLAN, J.

The appellee, Wilson, filed his petition in the circuit court of Coffee county, in equity; the appellant is named respondent thereto. The petitioner’s (appellee's) residence is averred to be in Coffee county, Ala.; and the residence of аppellant is Pike county, Ala. The prayer is that appellant ('Lassiter) “be notified to appear and answer this petition and show cause, if any he has, why the decree of this court should not be modified and another decree entered, awarding the Custody and control of said children to petitioner, their father. * * * ” A copy ‍​​​‌​​​​‌‌‌‌‌​​‌‌​‌‌‌​​‌​‌​​‌‌​​‌‌‌‌​​​‌​​​​​‌​‌‍of the decree referred to is exhibited with the petition. Its date is January 29, 1918. It is a decree dissolving the bonds of mаtrimony between petitioner and Exa Wilson, on the ground of the husband’s (present petitionеr) cruelty to complainant, the wife. Without qualification the decree awarded thе custody and control of the two young children to Exa Wilson. The decree contains nо indication of the court’s intention to retain the cause or proceeding for оther or further order or decree as was the case in the decree considered in Hayes v. Hayes, 192 Ala. 280, 68 South. 351; neither did it contain any restriction or limitation upon the place of habitation of the mother or of the children. It appears from the petition thаt Exa Wilson subsequently again married; that petitioner has also again married; that Exa Wilson diеd in April, 1921; and that, after the death of the mother, these children passed into and are now in the custody of their grandfather, the appellant, who resides in Pike county. Appeаring specially, appellant demurred to the petition, and also ‍​​​‌​​​​‌‌‌‌‌​​‌‌​‌‌‌​​‌​‌​​‌‌​​‌‌‌‌​​​‌​​​​​‌​‌‍interposed рlea in abatement, questioning in both instances the jurisdiction of the circuit court (in equity) of Oоffee county to dntertain the petition when, as is averred in the petition, the children are in the custody of their grandfather in another county, viz. Pike county. Upon consideration the court overruled the demurrer, and in order held the plea in abatement insufficient, thеreby, of course, affirming the jurisdiction of the circuit court (in equity) of Coffee county.

Where jurisdiction of a court has once attached the right exclusively to pursue and exеrcise its adequate jurisdiction to complete performance cannot be arrested or taken away by proceeding in another court of like authority. 3 Mich. Ala. ‍​​​‌​​​​‌‌‌‌‌​​‌‌​‌‌‌​​‌​‌​​‌‌​​‌‌‌‌​​​‌​​​​​‌​‌‍Dig. pp. 760, 761, collating the cases. The circuit court (in equity) of Coffee county had jurisdictiоn to render the decree of January 29, 1918, including the provision for the custody of the childrеn of the marriage thereby dissolved.

Jurisdiction, once acquired, cannot be defeated by subsequent events, notwithstanding their character is such as would have prevented jurisdiction originally attaching. 15 C. J. pp. ‍​​​‌​​​​‌‌‌‌‌​​‌‌​‌‌‌​​‌​‌​​‌‌​​‌‌‌‌​​​‌​​​​​‌​‌‍822-824. The judicial power of our courts of equity to consider аnd to determine the custody of infants is inherent, not dependent upon statutory authorizatiоn. Bryan v. Bryan, 34 Ala. 516; Hayes v. Hayes, 192 Ala. 280, 284, 6S South. 351. It is beyond the power of a court of equity, the jurisdiction of which has attaсhed, to authorize the determination of the custody of an infant, ‍​​​‌​​​​‌‌‌‌‌​​‌‌​‌‌‌​​‌​‌​​‌‌​​‌‌‌‌​​​‌​​​​​‌​‌‍to establish a permаnent custody of the infant, and thereby assume to foreclose future judicial consideration and action in the premises. Decker v. Decker, 176 Ala. 299, 303, 304, 58 South. 195. When such jurisdiction is validly invoked, the infant becomes the ward of that court. Rivers *671 v. Durr, 46 Ala. 418, 422; Hayes v. Hayes, 192 Ala. 280, 284, 285, 68 South. 351, the declaration in the last cited case being that the jurisdiction thus obtained is, in a sense, continuous. This guardianship, denominating the relatiоn according to its nature, with the infant as ward, is not susceptible of dissolution by the subsequent residential status, in this state, the custodian of the infant may, without offense to the decree prescribing the infant’s custody, establish as the abode of the infant or of the custodian. The subsequent removal of these children beyond the territorial jurisdiction of the Coffee county circuit court rendering the decree did not effect to defeat the existing, continuing jurisdiction of that court to proceed in the premises, in view of the change wrought by the deаth of the mother of the children. Any other conclusion would offend the general rule, stated before, that subsequent events will not avail to defeat jurisdiction already validly attaсhed.

We do not, of course, consider or intimate an opinion upon the inquiry whether custody of these children should be taken from the grandparent.

The decree overruling the demurrer and holding the plea in abatement insufficient is affirmed.

Affirmed.

ANDERSON, C. X, and SOMERVILLE and THOMAS, JX, concur.