*1 on statute, the basis of then the construction of the judicial application issue of construction and existing presented statute to the facts must be directly original jurisdiction by an appropriate pleading in that court. The issue cannot presented indirectly by proceedings in habeas corpus in another court.
Judgment is therefore affirmed.2
Bobbitt,
J.,
JJ.,
Landis,
C.
Jackson and
concur.
J.,
Arterburn,
concurs
result.
Reported in
Note. — State ex rel. Court of Judge. 1, Bell, Marion Room No. 29,978. Filed [No. June 1961.] presented by appellant 2. Other issues have not been they discussed since are not material to our decision. *2 Travis, Hendrickson, Thomas A. P. Howard Hendrickson, Indianap- & Royse, Travis, O’Brien olis, for relator. pro Bell, se.
M. Walter petition J. The relator filed his herein Jackson, for a writ of compel respondent mandate to judge court and to ássert re- over the lator’s two "actions for writs „ . in said court. court, An alternative writ was issued com- manding Judge
No. and Honorable M. Walter Bell as there- expunge part set aside and of its order June in the consolidated action causes of court, in said No. S60-3981, S60-3976 and No. in which plaintiff James R. is the M. Richard Nay, Nay, P. Hindman, Jean. Thomas N. Jr. and Marjorie defendants, Hasbrook Hindman are the plaintiff which actions the seeks Writs of Habeas Corpus against defendants *3 certain children. That court ordered that said con- solidated Superior actions “be transferred to the County, Court of Marion they Room 5 and that consolidated in the action entitled R. James Gregory, (cid:127)u.Mariam Waldo Cause C-7250 which action pending Superior is now in the said Court Marion County, 5”; Room and Marion thereafter said Superior Court, judge Room and the thereof was jurisdiction action, ordered to retain said causes proceedings required and further conduct therein as by law; do, respondents or on failure so to that said showing any file return their herein reason in law why perma- or fact should not be made writ nent. respondents filed their return which in es-
sence reads as follows: “I. That the issue before was Respondents Respondents, herein, juris-
whether or not had diction to hear determine divorced father’s petition seeking Corpus, writ cus- Habeas tody of against juris- his the asserted Superior diction of County, Court of Marion Room No. in which latter divorce court said granted custody of said children awarded to the mother, recently deceased, divorced under wherein, shortly circumstances after said death, mother’s said latter had an heard intervening petition modify custody order and change had issued its decree to said (to defendants cause below) upon intervening petition said of the di- vorced sisters, father’s in which divorced appeared father adversely, and suffered decree, said adverse and when at the time the petitions Corpus for Habeas were before re- spondents, said latter previously court had heard part evidence in dence, strain and continued for further evi- intervening petitioners’ petition to re- annoying the divorced father from persons to whom the of said children had been awarded. Respondents “II. took upon the view that mother, death of the the cause in County of Marion hence said exist, Room No. 5 ceased to had jurisdiction, no further Respondents so exercised following. as set out Paragraph III (for “HI. The corpus) causes were con- objection. (There without solidated were two sets defendants, being, each, couple a married whom County, Court of Marion had awarded of certain of said chil- dren.) Respondents plaintiff’s excep- sustained tions to both returns to the writs of habeas prior (based upon of the di- court) vorce and ordered the consolidated cause court, transferred divorce Room No. and con- *4 original solidated there with the for cause for divorce proceedings further in said causes of habeas corpus. agreeable party Respond- Neither to “IV. ruling, taking defendants ents’ the view that original for cause divorce divorce said proper court were the cause forum in which questions custody. to Respond- determine all plaintiff (relator herein) ents understand seeks Respondents jurisdiction, mandate to to exercise Respondents while defendants seek mandate expunge rulings the record of all and entries corpus. and dismiss said causes Ac- for habeas conflicting cordingy, ly presented and adequate- views be will Supreme Court of Indiana will, Respondents therefore, brief, file no abide this court’s decision.” but eliminating question presented here, The the mul- pleadings verbiage, tiplicity of and all excess is sole- jurisdiction. ly purported The one of in interveners Court, Superior contend that action to determine all has exclusive controversy; here relator contends issues has exclusive Court Room corpus to determine the habeas proceedings. questions in that raised understanding of the rec- order that a clearer In briefly chronological had, out a may set we ord original leading- up to events narration of the 13, 1960, on relator appears June action. It Room No. of Marion filed corpus against petition a writ of habeas Nay Nay P. to obtain and Jean M. Richard Gregory, age 14, Ralph John relator’s age 9, Gregory, cause was num- which Marianne thereof; at the same on dockets S60-3976 bered cause No. S60-3981 in that court as time relator against petition for writ a second Marjorie Hindman, Hasbrook Jr. and N. Thomas child, relators Alison to obtain Hindman holding Nays Ralph age were John Gregory, 6. Gregory purported under the Marianne authority of an order
County, purported 5, Room No. under cause No. holding C-7250 therein. The Hindmans were Alison Gregory agents purported as friend or of James R. principals, Talbott, Talbott and Barbara R. who purported granted custody were to be of Alison Gregory by the same order.
Cause No. C-7250 awas divorce action commenced August Superior 31, 1954, in the of Marion Court County, Gregory, Room 5.No. James R. relator here- plaintiff in, was the and cross-defendant. Mariam Gregory, Waldo mother of the children named here- cross-complainant. in, was the defendant and She was granted a final divorce therein and of said 15, 1954, children on November the decree award- ing mother, to the found person proper that she suitable and have custody, finding their but made no all as to the at or unfitness of the father to said chil- fitness have February dren, 27, 1960, and thereafter on said Mariam Waldo was deceased. Spangler 2, 1960,
On March Martha of Ohio and Cartlidge County, Indiana, Florence of Hendricks purported Superior filed in cause No. C-7250 County, 5, a Marion Room No. document Court of Interlocutory “Petition for Order Cus- entitled praying tody,” requesting permission “intervene,” Gregorys’ of the minor children taking custody. enjoined from and that relator be pleadings filed were had Various Superior 13, Room until June Court petition for the relator filed his at which time corpus Superior of Marion Court habeas upon County, rela- No. 1. Writs were issued Room corpus Court tor’s habeas actions County, al- filed Room No. returns were Marion County,
leging Marion subject matter. No. had alleging returns exceptions said Relator corpus were not answers sufficient petitions. con- causes were The said habeas 16, 1960, solidated, and, on the said June Hon. M. Walter Room No. sustaining re- Judge thereof, Bell, an order entered *6 ordering exceptions, that the consolidated lator’s but Superior transferred causes be 5, County, for Room No. consolida- of Marion Court from this refusal It tion with cause No. C-7250. Superior respondents, Bell, Judge, 1, Walter Hon. M. Room No. jurisdiction causes No. over consolidated exercise relator seeks relief and S60-3981 that S60-3976 herein. Court, 5, Room Marion in against by petitioners the relator
were instituted theory of the virtue herein that on granting unto former decree of that Gregory, wife, Waldo Mariam the deceased of the the minor children divorce and 5, Court, retained parties, that said any action seek that respect decree with ing modify the former divorce in that court. properly be instituted thereto would appear authority it would the better reasoned Under entirely and proceedings terminated divorce former wife relator the death died with Lyon Bryan (1885), 27, v. et al. February 1960. on 1353, R., 1352, 880; 227, 74 A. L. 3 E.N. 104 Ind. 258, 260, (1955); 2 2d L. R. ; A. (1931) 39 A. L. R. 2d (1960) Relator 2791, and cases cited. Supp. Service against to defend appearance that his contends
49 modification, parte ex intervention and orders Superior Court, 5, action in Room did confer or not proceedings. revive said He cites the following Morrison v. Morri cases authorities. App. 270, (1960), 130 Ind. 113; son 164 E.N. 2d Hughes (1943), 269, v. Bowen 193 Okla. 143 P. 2d 139; Lyon Bryan (1885), 227, v. et al. 104 Ind. 3 880; 309; Rep. N. E. 54 Am. State ex rel. Gravelle (1950), v. Rensch 230 881; 40 Minn. N. W. 2d (1924), De App. 1, 738; In re. Leon Calif. Pac. 82 Ariz. Woodford 973; P. 2d 39 L. R. A. 2d 278. hearing 18, 1960,
At on March on the inter- vening petition C-7250, filed in cause No. the di- Superior Court, vorce case in Marion Room there finding reading pertinent the court part as follows: “ advising . . . and the now the Court they agreement having are now in stipulated Court, sufficient facts to the Court being duly sufficiently prem- advised intervening ises now petitioners, finds *7 Cartlidge Spangler Florence and Martha against answer Plaintiff, R. James on his petition; to said ...” Gilley Combs (1941), v.
In the of 219 case Ind. 145, 776, 36 E. 2d 139, N. this court recited rule follows: of common law as
“ ‘Both under the common law and the statutes State, parents of this natural are entitled to the their minor of except they persons when are unsuitable care, be entrusted their with control and (1905), v. Kiston 165 education.’ Gilmore Ind. 402, 406, E. 1083.” 74 N. inconsistency no in We find the fact 18, 1960, permit persons father on March fit saw 50 cus care and to have the than himself
other Being entitled minor children. tody of said mother, absence on the death forum, that he was an showing proper any in a custody, he care person to have such unsuitable have such law, entitled to operation be would sake custody, and could care and temporarily custody to vested permit be such himself. persons than in other his actions 1960, instituted 13, the father June On regain chil possession said corpus' to in habeas 1. There can dren in propriety question of habeas to the as no remedy Acts in case. as instant being 38, §802, p. 240, Sess.), §3-1903 (Spec. ch. 1881 Gilley (1941), 219 v. Combs Replacement; 1946 Burns’ Lyon 776; Bryan et al. 139, v. 36 N. E. 2d Ind. 880; et ux. v. Walts 227, Henson 3 N. E. Ind. Berryhill (1851), 2 Ind. 170; (1872), 40 Bounell v. Ind. 613. in this reached have
In view the decision we hereby necessary, determine nor do we case it is not ac right intervene of the intervenors de question here has been tion. The determinative (1943), 193 Hughes Bowen cided the case case the such Okla. P. 2d having as follows: stated has “Though action a divorce trial sup continuing jurisdiction over final port after. minor children even §1277), (12 judgment in the action O.S. the court’s party action dies when purposes so far for all ceases are concerned. control the children upon the it is said Am. Jr. In 17 judicial one of the divorced death of *8 far decree, falls so divorce 51 any right concerns custody further to the children. “Upon the death parent into whose custody the placed by children are decree divorce, the., stand, with relation to the surviving parent world, and all the as if no de- cree of divorce had been entered. In' such case right custody of the children inures auto- matically surviving parent. to the A. L. R. 1353, annotation. It is there said annotator: “ prevailing is, that, ‘The clearly rule upon the parent death of the custody who has held under right decree, a divorce automatically surviving inures parent.’ “In event is withheld from the sur viving parent, remedy his or her is habeas corpus, pursuant unless is withheld county guardian to order of the ship proceedings, or order of said court adoption juvenile issued under or statutes . .”. See also: Woodford 181, 309
Ariz. P. 2d 973. The alternative writ of mandate heretofore issued permanent. now made Bell, Marion Room No. M. Walter Hon. Judge, is directed reassume in causes proceed- No. and No. S60-3981 for S60-3976 further ings therein in accordance with law. J.,
Bobbitt, concurs. J.,
Arterburn, in result. concurs Landis, J., opinion. C. dissents with Achor, J., opinion. dissents with
Dissenting Opinion Achor, opinion J. I not do as writ- concur in *9 opinion My Jackson, that
ten J. dissent to based grounds. upon two County, Marion Room
First: of acquire jurisdiction 5, parties the the to court first subject action, it and the matter of this general being jurisdiction, court it therefore had a subject parties and of the the matter to all the exclusionof other courts. support are
The facts in conclusion above Gregory follows: R. wife were di- James his County, in vorced the granting 5, and court entered an order Room the custody of children the the three 15,1954. and mother wife on November Thereafter, 2, 1960, the sisters of the on. March surviving intervening petition an father filed custody of to the the three action relative divorce original parents, in the the divorced minor the relator To this herein action for divorce. action appearance, of action a formal filed said cause visiting privileges petition for determination a intervening petition. general to the a answer heard and evidence on the submitted The cause was presented At the to the court. conclusion thus issues granting hearing entered a decree court custody Marianne to Rich- John and Nay, custody of P. and the Alison Jean ard M. and Gregory Marjorie Hindman, Jr. and Thomas N. Hindman. Hasbrook adjudication
Nothwithstanding the above Court, Room relative he a in which entered relator’s presented, general appearance the issue and tried petition days a thereafter few he within corpus against Nays Hindmans, habeas and the Marion, Superior Court, asking Room of that readjudicated issue of be and that given he of the children. The re- spondent transferring entered an order Superior Court, action to Room on theory acquired the latter had exclu- jurisdiction. sive pro- Relator now seeks writ prevent hibition to such transfer. considering
In jurisdiction, issue as respective courts, we are confronted the fact Superior Court, was the court which *10 acquired jurisdiction subject first over the matter proceedings. and the involved in both Under stated, the circumstances above this court bound is by the rule laid down State of case Court, (1961), 241 403, 172 Room Ind. E. 668: N. 2d “The issue to be determined here is whether Superior Court,
the Marion now has jurisdiction gen- of the matter here involved. The upon respondent eral rule which herein relies has been stated as follows: jurisdiction, may ‘. . . Two of concurrent courts cases, have may acquire jurisdiction of the same class of person, of the same but acquires jurisdiction where one of the two first subject person particular matter in a case, jurisdiction becomes exclusive. . ..’ I. L. E. the Courts, §132, p. 538.” Any duplicity other rule would lead to and utter litigation respect confusion with the several of courts concurrent this state.
Secondly: opinion although I am of the that the equally of various are about courts the states divided upon issue,1 reasoning upon the both the the better subject of the statements made in the decisions support notwithstanding the the this rule priority parents custody ordinary of the of their unity dissolution the in event the grants family by divorce, court which thereupon must and does on behalf divorce. parens patriae state role of of the chil assumes the dren, authority responsibility continues which during minority children. Duckworth v. 276, 281, E. 773. Duckworth 203 Ind. 179 N. although Furthermore, observed that it to be corpus proceedings employed have been purpose state for the of determin- courts ing of divorced the care and following parents, parents of one death presented heretofore no has the issue been case proce- corpus is the exclusive to whether habeas whereby dure the issue of such care and In under such circumstances. should be determined supra, pro- fact, case, a in the Duckworth which was ceeding surviving divorced in habeas determining purpose father that, “A specifically child, stated of his this court duty, continuing grants a has divorce upon petition, see that the child proper *11 §317(1). S., J.C. Divorce 1. This issue is discussed at 27B authorities, one p. 529, the death follows: “Under some as continuing power of parties terminates divorced custody; modify respect to with court decree (1957), 82 . .” Ariz. —Woodford v. See App. 973; (Mo. 181, v. Mo.—Graves Wooden Ariz. 309 P. 2d (1949), 1956), N.Y.S. 2d 665; 91 W. 2d N.Y.—Lund v. Lund 291 S. Quinn 698, 136; (1951), v. 192 Misc. Hanks 196 Or.— opposed 254, 767, other are Or. 233 2d and “but authorities P. (Fla. 1953), 62 2d to this v. Cone So. view.” See Fla. —Cone 126, (1953), v. 415 Ill. 112 N. E. 2d 907. Ill. —Jarrett Jarrett App. 1957), Ky. Cupp Cupp (Ky. 2d 371. 694. v. 302 S. W. — (1954), 988, E. 2d 432. Horn 195 Va. 81 S. Va.—Judd v. Van 55 properly for, divorced such be- cared child ing, sense, (My italics.) in a the ward the court.” then, quoted approval case with from the 361, Keesling Keesling (1908), App. 42 85 v. Ind. 837, specifically N. E. in which the stated more as follows: “ training proper ‘The nurture and such chil- State, subjects dren are of vital interest themselves,
as well as to the and when family up, the court has been . . . thus broken granting the divorce must be deemed to have full minority continuing jurisdiction, during and children, such from time to such make time of orders thereof, control, respect modifications with care, custody are their deemed expedient, society interests and welfare children, inquiries, being all such ” paramount controlling (My consideration.’ italics.) stated, continuing The rule above relative to the jurisdiction during minority of the divorce court repeated frequently has been since time now must be an considered to be estab principle of our fundamental law. Scott Scott lished v. (1949), 533; Rager Rager 227 Ind. 86 N. E. 2d v. (1943), 261; 54 N. E. Ind. 2d Manners v. (1936) 300; State 210 Ind. Zirkle N. E. 2d Zirkle Ind. 172 N. 192. E. strong compelling why There are if reasons not court, required the divorce which is statute2 to as- sume over the children continuing jurisdiction parties, exercise should during over the their minor- of such children ity affected should not be Among parents. the death one of the these (1946 Repl.). Burns’
2. Ann. St. §3-1219 *12 following: (1) responsibility of the reasons are broken, parens patriae of the children the state as by the of one is in no wise diminished death homes where, case, parents, particularly the as this party deceased was in whom the state awarded the the charged care and children. contrary, responsibility it would seem that On for the welfare of the children which the state as- in, parens patriae sumed as the divorce action has (2) been reason of increased this circumstance. persistently has This court asserted that in all actions relative to the children the interest society and the welfare of the children are the controlling issues, other considerations over all wheth- corpus. er the action be in divorce or habeas Con- rule, sistent with to be it is observed that security continuity primary of custodial is of con- By permitting sideration welfare children. persons actually responsibility assumed the who have par- for the of custodial care children divorced action, ents to intervene in the divorce notwithstand- ing parents, opportunity death of one of the continuing present a afforded for determination if, following However, care. of such custodial parent, death of the issue custodial care could solely by corpus, be determined by relator, contended result would be that as surviving parent action, only could initiate custody might the issue of the result with indefinitely postponed or remain undetermined minority throughout period caring actually persons the children since legal status to effect such de- would be without urged by procedure a rule termination. Such might domestic frus- well result continued relator tration non-parental both to the custodians of the throughout and the children themselves prolonged period minority. of their procedure Such *13 compatible is not with the of the thesis fundamental rule such primarily the law is society concerned with the interests of and .the wel- fare (3) of the court, children. The divorce which regarding the heard evidence par- the conduct of the prior to the ties divorce as related it welfare of the children and further has labored with the problem care and welfare of the children fol- lowing parents, the divorce of the in a po- is better any court, sition than other on the of the basis it, record before to determine the issue of the welfare of the children. present strong
The afore-stated circumstances compelling why reasons the divorce court must maim continuing jurisdiction tain custody over during period children minoriy, their not- withstanding parents. the death of one of the It although corpus may therefore follows habeas proper procedure also be for the determination of under the here circumstances presented County, Court of Marion 5, being adju- Room the court in which the case was having jurisdiction first assumed dicated and it parties presented, the issues here both it now subject of exclusive over is the court matter.
Dissenting Opinion corpus for were C. J. Petitions habeas Landis, asking respondent of chil- filed in asserting dren, filed returns such defendants which pursuant the decree custody by defendants jurisdiction. competent We asked another court of are respondent court to hear the habeas here to mandate notwithstanding corpus filed. returns actions original Supreme are we In action Court this question conflict of confronted with a jurisdiction, viz.: between two courts co-ordinate County, of Marion Room granted a di- wife had been wherein defendant 1954; custody of the vorce and 1, respondent herein, re- which latter court ex-husband subsequent to the ex- lator filed on June death, proceedings for wife’s the children. authority country There a division upon the death of one as to whether *14 custody that of of to a decree divorce and continuing jurisdiction said cause a of court retains future, should instead or whether such matter in adjudicated proceeding. corpus in habeas court be 2d, (2 Supp.). 1960 258 L. R. L. R. 2d A. :39 A. See appear ruled Indiana do not to have of The courts although corpus question habeas has some- on such continuing question no used where been times granting and the divorce jurisdiction of the court the court.1 was before 776; 139, Gilley (1941), Ind. 36 N. E. 2d 1. Combs v. 219 (1885), 880, Lyon 227, Bryan N. 54 v. et Ind. 3 E. al. 104 170; 309; (1872), et ux. Ind. Bounell Henson R. v. Walts Am. Berry (1851), hill 613. v. 2 Ind. prevailing opinion in the will noted that statement It be case, question . . There can no as instant “. remedy case”, corpus propriety as in the instant of habeas controlling neither the statute the cases therein is not nor question purported to with or consider cited deal granting previously continuing everyone prior concedes existed to and which divorce the death of wife. n However, a case presented my opin- is not here ion for our determination of where Indiana Stands among conflicting decisions of the courts of other states, appears as here subsequent it relator February 27, 1960, his former wife’s death on and prior filing to his
respondent 13, 1960, voluntarily court on June entered following proceedings into the num- under cause prior judgment ber of the divorce action and 5, Court Marion Room viz: 1. Plaintiff inter- filed answer [Relator] petition custody. venors’ for Hearing 1960, 2. had thereon on March plaintiff agreed wherein and thereupon intervenor [relator] stipulated respondent to facts against plaintiff found [relator] granted for intervenors requested by children as intervenors. Thereafter, 1960, plaintiff April 3. on [re- petition determination visita- lator] rights plaintiff, subsequently allegedly tion by plaintiff. dismissed Thereafter, May 23, 1960, plaintiff 4. on [re- petition filed answer to intervenors’ lator] modify custody order. Thereafter, May 23, plaintiff 5. on [re- change judge. filed affidavit for lator] my opinion in this case relator must It deny estopped to be deemed Hughes the Oklahoma case of It should also be noted that 139, upon Bowen Okla. 143 P. 2d which recognizes *15 reliance, places prevailing opinion itself chief corpus availability exceptions the of habeas under certain to prevailing opinion’s quote), (as appears law Oklahoma pursuant is withheld of of viz.: . to order “. . [when] proceedings, by county guardianship or order the court juvenile adoption or statutes said court issued under apparent court not It is therefore Oklahoma did . . .” remedy another an all-inclusive where consider legal proceedings. taken other valid had court County, 5,
Superior Court Marion Eoom over cus- invoking tody estopped from by jurisdiction, respondent court his act of volun- re-submitting jurisdiction tarily himself to death of No. after former Court his filing wife, Gregory, prior Mariam Waldo corpus proceedings respondent court. of habeas jurisdiction if well a It is settled that court subject jurisdiction of is in possessing matter2 by controversy party in a who submits him voked a by entering general authority appear a to its self filing pleadings merits, party on the such ance may not thereafter if dissatisfied with the outcome question litigation for the first time then voluntarily jurisdiction he sub of the court to which properly thereupon file the an case mitted jurisdiction. cases: co-ordinate See other court of rel. Carr v. (1961), ex Marion Court State 669, 670; 668, E. State ex 241 Ind. 172 N. 2d Shelby (1939), 216 Ind. Tuell rel. v. Circuit ex rel. 425, 426; 231, 236, 23 N. 2d State E. 193 Ind. Madison Circuit Court Any our other result would make N. E. 765. orderly prevent de judicial system chaotic and termination of lawsuits. my judgment grievous error
It is therefore hear a habeas mandate one to this court regarding custody brought by relator corpus action just previously been submitted such matter has when jurisdiction having previous relator questioned It indeed cannot 2. jurisdiction 5, possessed the sub- Marion of ject matter, the identical with i.e., to which the class of cases statutory belongs. its In fact instant case respondent court which created 4-1421, inch) (Burns’ same act. §§4-1401 *16 subject previous matter has which de- disposed termined and is of the case. Yet what prevailing opinion doing. deny I would dissolve the alternative writ permanent writ. Reported in 176 E. 2d 126. N.
Note. — Steinwedel, ex State rel. Auditor etc. v. Marion Judge. Niblack, Court, Circuit 30,019. July 25, [No. Filed 1961.] Steers, Attorney Edwin K. Richard General and Givan, Deputy General, Attorney M. for relator. Grills, Indianapolis, respondent.
Nelson G. Curiam. On October we issued a tem- Per porary prohibition man- of mandate and herein writ dating grant stay respondent motion to relator’s appeal court, proceedings pending further an to this prohibiting respondent proceeding further from