This is an action in certiorari wherein the relators seek to quash the judgment of the Circuit Court of St. Francois County in a habeas corpus action brought by Odell Fleming McClarney and Etta Ellen McClarney, seeking the custody of Justin Lee White, who was in the actual custody of his parents. The scope of our review in this action is confined to jurisdictional matters and errors appearing on the face of the rеcord in the habeas corpus proceeding. State ex rel. Shartel v. Skinker,
Respondents’ return to our writ of certiorari shows that Odell Fleming McClarney and Etta Ellen McClarney in their petition for writ of habeas corpus alleg'ed that Justin Lee White, seven years of age, was illegally and wrongfully restrained of his liberty by relators in this action, Arthur C. White and Mary Lee White; that said child was taken from petitioners by the said Arthur C. White and Mary Lee White, and that petitioners had the custody, care and control of said child for seven years prior to the filing of the petition; that the petition further аlleged that the said Arthur C. White and Mary Lee White are the natural father and mother of said child, and that approximately seven years prior to the filing of the petition they deserted and abandoned the said child and that the said Arthur C. White and Mary Lee White wrongfully refuse to return the said minor child to the petitioners. Petitioners prayed for a writ of habeas corpus to bring up the body of said Justin Lee White to аbide such order as the court may direct. A writ was served on the respondents in said habeas corpus action. The language of the writ is as follows:
“You and each of you are hereby commanded that the body of Justin Lee White, under your custody detained, as it is said, under safe and secure conduct together with the time and cause of their imprisonment and detention, by whatever name the said Justin Lee White may be known, you have before J. O. Swink, Judge of the St. Francois County Circuit Court, at the court' house in Farmington, Missouri, on the 23rd day of September, 1952, at 9:30 o’clock A.M. on that date, then and there to be dealt with according to law and have you then and there this writ, and hereof fail not at your peril.
“WITNESS, J. O. Swink, Judge of the St. Francois County Circuit Court and the seal of the Court affixed hereto this 10th day of September, 1952.’’
A return to the writ of hаbeas corpus was filed by the respondents in said action and
At the time of the filing of the return, respondents also filed their verified motion to quash the writ of habeas corpus, and gave as grounds for said motion the following:
“1. The petition upon which the Writ of Habeas Corpus issued in this case does not state a cause of action.
“2. The petition upon which the Writ of Habeas Corpus issued in this case admits that the Respondents are entitled to custody of Justin Lee White, in that the petition admits that the Respondents are the natural Father and Mother of the said Child; аnd further the petition does not state that there are any judgments or decrees of any court showing any desertion or abandonment of Justin Lee White. Further there is no allegation showing any adoption of Justin Lee White by the petitioners.
“Therefore, the petition itself shows that the petitioners have no legal or equitable right to the care, custody and control of Justin Lee White * * *.
“3. The petition upon which the Writ of Habeas Corpus issued in this case does not allege the [un] fitness of the natural parents, the respondents herein, nor does the petition state that the best interest and welfare of this child, Justin Lee White, requires the removal of the care, custody and control of the child from the respondents to anyone.”
This motion to quash was overruled by the court on October 3, 1952, on which day the habeas corpus action was heard and submitted. On the same day the following decree was entered by the court:
"The body of Justin Lee White in the foregoing writ of habeas corpus mentioned, being brought before me at the time and place in the said writ and the return thereof being read and considered and upon the conclusion of all the evidence on behalf of the petitioners and all thе evidence on behalf of the respondents and after hearing argument of counsel, the Court being fully advised and satisfied in the premises makes the writ of habeas corpus heretofore issued final and further finds that Justin Lee White has been neglected by his parents, the respondents in said writ, for more than two years by reason of his parents, the respondents, failure to provide support of any nature for him and further finds that the said Justin Lee White has been abandoned by his parents, the respondents herein, and therefore orders the said Justin Lee White delivered to and his custody placed with Odell Fleming McClarney and Etta Ellen McClarney, petitioners, and assesses the costs against the respondents.
"It is further ordered and decreed that the sheriff of St. Francois County, Missouri, deliver said Justin Lee White to the petitioners, Odеll Fleming McClarney and Etta Ellen McClarney.
/s/ J. 0. Swink
Judge of the Circuit Court
St. Francois County, Missouri.”
On October 6, 1952, petitioners filed an answer, which they denominated a reply, verified by the attorney for petitioners, to the
return of respondents. In this answer, among other allegations, petitioners admitted that the said child had never been declared an abandoned child and admitted that there had never been any adoption proceedings for said сhild. Petitioners further admitted that respondents had the custody of the said child, but denied each and every
On October 13, 1952, respondents filed their motion for rehearing and joined with it a motion to quash the writ of habeas corpus. The pertinent allegations in this motion charge that the habeas corpus action was tried on the 3rd day of October, 1952, without an answer having been filed to the respondents’ return; that an objection was made to the introduction of any testimony which was overruled by the court, and that because the issues were never joined the court did not have jurisdiction to try the case; that in the absence of an answer the return of the respondents must be taken as true and that the answer to the return filed on October 6, 1952, was untimely and was not verified by either of the petitioners or the attorney of record for the petitioners, and that it was error for the court to grant the custody of this child to the petitioners for the reason that the natural parents were entitled to the custody of said child. This motion for rehearing and to quash the writ of habeas corpus was overruled by the court on November 7, 1952, at which time the court granted petitioners fifteen days “to supply amended reply (answer) tо return.’’ (Parentheses ours.) The amended answer to the return was filed by petitioners on November 15, 1952, and was verified by the attorney for said petitioners. Said amended answer was identical in substance with the previous answer filed, except that it, by reference, reasserted and alleged all of the grounds set forth in the petition for the writ of habeas corpus. Relators in the certiorari action before us have filed their motion for judgment on the pleadings.
Relators contend that respondent J. 0. Swink, Judge of the Circuit Court, had no jurisdiction to issue the writ of habeas corpus because the original petition for said writ did not state a cause of action, and further contend that the allegations of their return were not denied by the petitioners in the habeas corpus action and that by reason thereof the court had no jurisdiction to enter its decree, pointing out that no answer was filed to the return until after the court entered its decree. It has been held many times that the return to the writ in a habeas corpus proceeding is the first and principal pleading. The issues in such a proceeding are made up by the return to the writ and petitioner’s answer to said return. The facts set out in the return are to be taken as the ultimate facts in the case, unless such facts are denied or their effect avoided by some appropriate pleading. Thompson v. Sanders,
<<# # # under our law a parent has a natural right to the custody of his minor child, a right which public policy demands shall be held inviolate, and which, in a contest between the parent and some third person, is not to be denied the parent unless it is made manifest to the court that the parent, for some strong and cogent reason, is unfit or incompetent to have his child, so that the welfare of the child itself demands a different disposition.”
In Bailey on Habeas Corpus, Section 148, is found the following statement:
‘ ‘ The party applying for the writ must affirmatively show that he is entitled to the custody of the child, whether it be a parent, individual, or a corporation organized for charitable purposes.”
Again, in In Re: Stuart et al.,
“In all cases and texts that have been cited and that we have examined, it is uniformly held that a writ of habeas corpus will only be granted, in the case of an infant, where the applicant shows a prima facie legal right to the custody of the infant.”
This ease further held that the grandparents of a child have no natural or inherent right to the custody of the child.
Further support for this position may be found in the case of Ex parte Reinhardt,
“ * * * * the rule is that one who has or claims no legal right to the custody of a minor may not be heard to say in a proceeding in habeas corpus that the parents are not fit and proper persons to. have the custody. ’ ’
We are of the opinion that petitioners in the habeas corpus action had no more right to sue out the writ than did any other person in this state. They were in no way entitled to the custody of the child and, having no right to the custody or control of this child, the petition for the writ of habeas corpus should have been dismissed. In re: Poole,
At the time of the oral arguments in this proceeding, counsel for respondents pointed out that the court in its decree found that the child had been neglected by his parents for more than two years and had been abandoned by'them and .that by reason of these findings the court had the jurisdiction to award the custody of said child to any proper person, including the resрondents herein. An examination of the petition for habeas corpus discloses that the only issue raised by that pleading is that of illegal and wrongful restraint. Said petition merely permitted an inquiry into the alleged unlawful restraint and it was beyond the jurisdiction of the court to convert the action into a neglect proceeding. To bring respondents in the habeas corpus proceeding into cоurt, by way of a writ commanding them to give the cause of the alleged imprisonment and detention by them of Justin Lee White, and then to confront respondents with a charge and finding of child neglect and abandonment, can find no support in the law. The trial court seems to have superimposed on the habeas corpus action the statutory provisions for the protection of a neglected child. The two proceedings are basically different. In a neglect proceeding the statutes applicable to the parties, Sections 211.360 and 211.370, R.S. Mo. 1949, V.A.M.S., provide a method whereby any reputable person, a resident of the county, shall file a complaint with the prosecuting attorney, stating that a named child appears to be neglected. It then becomes the duty of the prosecuting attorney to file
with the clerk of the juvenile court a petition in writing, setting forth the facts
The Juvenile Court Act, Title 12, Chaptеr 211, R.S. Mo. 1949, V.A.M.S., is a complete law within itself dealing with minors under the age of seventeen years. State ex rel. Shartel v. Trimble, et al.,
In Sanchez v. Garcia, Texas Civ. App.,
It is our opinion that the court did not have jurisdiction in the habeas corpus action to find that the parents of Justin Lee White had neglected and abandoned said child. The court having no jurisdiction to make such findings and the petitioners in the habeas corpus proceeding having no legal right to bring the aсtion for the custody of the child, it follows, therefore, that the court had no jurisdiction to enter the decree awarding custody to the petitioners. Not only did the court have no jurisdiction to enter the decree, but we are of the opinion the court had no jurisdiction to issue the original writ of habeas corpus that brought Arthur C. White and Mary Lee White into court, for the reason that the petition for writ of habeas corpus does not state a cause of action and, therefore, the motion to quash filed by respondents in the habeas corpus action, relators herein, should have been sustained. A respondent to whom a writ of habeas corpus is addressed can attack the petition if he desires by a motion to quash the writ. State ex rel. Chase v. Calvird,
It follows from what we have said that the proceedings and judgment of the Circuit Court should be quashed and the child remanded to the custody of his parents. It is so ordered.