226 P. 25 | Cal. Ct. App. | 1924
These are the facts shown, among others, by the petition for a writ of prohibition in this proceeding: One Myrna P. Sprague filed in respondent court her complaint against petitioner, which complaint was later superseded by an amended complaint, filed November 3, 1923. The latter pleading alleges in part that the plaintiff in the action, to whom we shall hereafter refer as the plaintiff, and the petitioner in this proceeding, whom we shall hereafter designate as petitioner, were wife and husband for a number of years prior to August 8, 1919; that during the subsistence of the marriage relation between the plaintiff and petitioner there were born to them two girls and a boy, the girls being, at the time of the filing of the pleading, of the ages, respectively, of eleven and eight, and the boy then being of the age of five; that on August 8, 1919, a court in a certain county in Wisconsin, in which county the plaintiff and petitioner then resided, rendered its decree of divorce *352 in an action in which petitioner was plaintiff and the plaintiff was defendant; that by the decree the care and custody of the daughters resulting from the marriage was awarded to petitioner and the care and custody of the boy was awarded to the plaintiff; that, except as later alleged in the pleading, the care and custody of the children has remained as by the decree ordered; that all three of the children were, at the date of the filing of the pleading, in the care and custody of the plaintiff, that then and ever since October 1, 1920, the plaintiff resided and has resided in Los Angeles County, California, and that all three of the children were, at the date of the filing of the pleading, residing with her at her place of residence therein; that since the granting of the decree of divorce conditions affecting the custody and control of the children have been changed and altered, particularly in certain respects which are set forth; and that the plaintiff is a fit and proper person to have the care and custody of the girls, is the person naturally entitled to their care and custody and is desirous of caring for them, supplying them with the necessities of life, with a good home and motherly care, and with proper education and maintenance. The amended complaint prays that the temporary custody, and, finally, the permanent custody of the two girls be awarded to the plaintiff. Upon the filing of the amended complaint respondent court made its ex parte order requiring petitioner to show cause why the custody of the girls should not be awarded to the plaintiff during the pendency of the action, and restraining him, pending the hearing under the order to show cause, from interfering with the plaintiff's care, custody, or control of the girls, from removing them from her custody, and from taking them out of the state. Petitioner, who is now a resident of Colorado, filed in the superior court an answer to the amended complaint of the plaintiff in which, in addition to many denials of allegations of the latter pleading, it is averred, in part, that the boy mentioned above is not the child of petitioner; that petitioner, who is a graduate of the United States Naval Academy, was absent from home in the service of his country during the late World War; that during that absence the plaintiff became infatuated with one Gowling and that said Gowling was convicted in the Federal court of a violation of the Mann Act (U.S. Comp. *353 Stats., secs. 8812-8819), so called, for transporting the plaintiff from Nevada to California for immoral purposes; that the conviction was affirmed on appeal by an opinion reported inGowling v. United States, 269 Fed., at page 215; that by the divorce decree rendered by the Wisconsin court it was ordered that the two girls, from July 1st to August 31st of each year, might be left with their maternal grandmother if the latter so desired, during which time the plaintiff "shall be at liberty to there visit and associate with them"; that the plaintiff's present custody of the girls resulted from a violation of the terms of the divorce decree; and that the finding of the Wisconsin court upon which the award of the custody of the girls to petitioner was made was "that the interests of said children demand that their care and custody be given to" petitioner. When the cause came on for hearing under the order to show cause above mentioned petitioner objected to the hearing upon various grounds, one of which will be mentioned below, and the objection was overruled.
At this juncture in the litigation the petition in the present matter was filed in this court, asking that a writ of prohibition issue to halt further proceedings in the action in the superior court. An alternative writ issued and upon the return day the respondents interposed a general demurrer to the petition. An answer was also filed, but, except for certain express admissions, it presents nothing but legal conclusions and it is conceded by respondents that the only question before us is as to the sufficiency of the petition for the writ of prohibition.
It is provided by section
[2] Turning from the claim that section
We are of the opinion that section
It is evident that a peremptory writ of prohibition must issue against the enforcement of the restraining order. As to the application for the issuance of the writ as against further proceedings in the action as a whole the situation is quite different. We are informed by counsel that the daughters of petitioner and the plaintiff have been released from the custody of the latter under a writ of habeas corpus issuing out of the superior court and that they are now in the care and custody of petitioner. Under the circumstances surrounding this communication we must and do regard it as a stipulation to be considered in making disposition of the present proceeding. The fact that the girls are now in the custody of petitioner, coupled with the fact that our writ of prohibition will issue in the matter of the restraining order, removes all necessity for the issuance of the writ against the action *357 as a whole. In truth, these circumstances make it improper for us so to issue the writ. The two minors being now in the custody of petitioner, and the operation of the injunction against their removal to Colorado, in which state they have heretofore resided, being now removed, all objection to the adequacy of the right of appeal from any judgment rendered against petitioner upon a trial of the action necessarily disappears.
Demurrer overruled. A peremptory writ of prohibition will issue restraining respondents from making any order for the enforcement of the restraining order made and entered on or about November 3, 1923, or from making any order with reference thereto except to dissolve the same.
Finlayson, P. J., and Craig, J., concurred.