101 So. 211 | La. | 1924
By the WHOLE COURT.
Domenico E. Eazzio, the relator herein, was married to Virginia Triolo, the daughter of Dominick and Elizabeth Triolo. Virginia Triolo died in this city on March 23, 1922, leaving a baby- daughter,
The application for the writ of habeas corpus has not yet been tried. Instead, the application has been transferred to division C of the civil district court, to be consolidated with a proceeding pending therein for the appointment of a tutor to the child, instituted by Dominick Triolo, some threp months after the filing of the application for a writ of habeas corpus.
Relator felt aggrieved because his application for a writ of habeas corpus had not been tried, and because the application for it had been transferred to division O to be consolidated with the petition of Triolo to be appointed tutor of the child. He therefore petitioned this court for a writ of mandamus to compel the judge of division D to try the application for a writ of habeas corpus, and also for a writ of prohibition to prohibit the consolidation of the habeas corpus proceedings with those of the tutorship.
Relator alleges in his application addressed to this court that eleven continuances have been granted in the proceeding for a writ of habeas corpus during a period of approximately six months. He also alleges that among these eleven continuances ten were granted over his protest. He further sets out that the first one was granted, over his objection, on December 10, 1923, the return day. for the writ, upon the statement of counsel for the Triolos that they had not had time to examine into the facts of the case, and therefore requested a continuance to enable them so to do. He represents that the next seven continuances were granted, over his objection, upon the request of the defendants, and the ninth he admits was granted because his own counsel was engaged in another division of the court in the trial of a jury case. The tenth continuance he alleges was granted because the child, whose possession is in controversy, had the measles, and needed the attention of her grandmother. He alleges that he objected to this continuance chiefly because of the number that had already been granted. The eleventh continuance is not properly a continuance, but is rather the transfer of the case to division 0 of the’civil district court upon the suggestion of defendants, to be consolidated with the tutorship proceedings, which was done over the objection of relator on June 2, 1924, four days before this court was petitioned for relief.
This court, after considering the application of relator, ordered a rule nisi to issue, directing the judges of divisions O and D to show cause why the relief prayed for by relator should not be granted. ' Both judges have filed their answers to the rule, and have forwarded the records in the habeas corpus and in the tutorship proceedings to this court.
The judge of division D, who issued the writ of habeas corpus, avers that the case in which the writ issued was first fixed for trial for December 17, 1923, but was continued for one week on the statement of counsel for defendants that they had not had sufficient time within which to examine into the facts and prepare for the defense of the case; that between that day and February
The respondent judge then avers that the foregoing grounds upon which he granted continuances are legal and sufficient. He also avers that the case was again, fixed for trial for June 2, 1924, but that on that day counsel for the defendants filed a motion to dismiss it, based upon the ground that there is pending in division C of the civil district court a petition filed by Dominick Triolo, one of the defendants in the habeas corpus proceedings, in which he prays to be appointed tutor to said child, and in which it is charged that relator is a man of notoriously bad conduct, and, moreover, that he has failed to support his said child for over a year, and is not fit to be intrusted with her custody, which charges, it is declared in the motion, are the same as those set out in the answer filed by Triolo and his wife to the petition for a writ of habeas corpus. The motion to dismiss, it is averred, also sets out that the judge of division C has awarded, during the pendency of said application for the appointment of a tutor, the provisional care and custody of said child to Triolo, the applicant for the tutorship. Respondent then avers that, in view of the fact that there is pending in division C of the civil district court such a petition, and in view of the fact that acting under said petition the judge of division 0 has granted the temporary custody of said child to said Triolo, he is of the opinion that he no longer has jurisdiction of the application for a writ of habeas corpus, and that said application has become merely incidental to the tutorship proceedings; and hence, in passing on said motion to dismiss, instead of dismissing the application for the writ of habeas corpus, he transferred it to division O to be consolidated with the proceedings for the appointment of a tutor.
The judge of division 0 for answer to the application of relator avers, among other matters, the pendency in his division of the petition for the appointment of a tutor for said child, and sets .out fully the charges, which we have- heretofore mentioned, preferred therein against relator, touching his alleged unfitness for the custody and tutorship of said, child. He also avers that he granted the temporary custody of said child to Triolo, not inadvertently, as alleged by relator, but advisedly, after having been informed by counsel for Triolo of the pendency of the proceedings for a writ of habeas corpus.
Opinion.
The writ of habeas corpus properly issues at the instance of one who claims to
In holding that the judge of division D erred in transferring the case, we appreciate that it is true that both cases involve the fitness of relator to be intrusted with the custody of the child, and we appreciate that it is true, also, that a conflict of jurisdiction has arisen due to the fact that the judge of division 0 has signed an order, granting the provisional custody of the child to Triolo, pending the appointment of a tutor, and it may be advisable, and probably is, that the two proceedings be tried by the same judge. However, under the circumstances, the tutorship proceedings should be transferred to division D and not the habeas corpus proceedings to division 0, for the former division had jurisdiction of the issue as to whether relator is entitled to the custody of the child before the tutorship proceedings were instituted. We find nothing in conflict between the views here expressed and those stated in the case of Courtin v. Browne, 150 La. 624, 91 South. 67.
Eor the reasons assigned, it is ordered and decreed that the rule nisi that issued herein be made absolute; that the transfer of said case be set aside; and that the judge of division D proceed to try and determine the issues presented in said habeas corpus proceedings without delay.