109 So. 607 | Ala. | 1926
Pursuant to section 7311 of the Code, the Judges of the Court of Appeals have referred to this court the following questions:
"The petitioner in this case files his petition for writ of habeas corpus, under chapter 151 of the Code of 1923, and, from an order denying the relief sought, he appeals to this court.
"Upon the general proposition that the remedy by appeal is purely statutory, that the order in a habeas corpus proceeding, under chapter 151 of the Code, was not a final judgment or decree of a court, but is an order or judgment of the judge hearing the petition, and that chapter 151 of the Code, supra, is both exclusive and inclusive, this court held in Ex parte State re Shirley,
"Subsequent to the decision in the Shirley Case, Mr. Justice Miller in McCarter v. City of Florence,
"Under the statute we therefore propound the following inquiries:
"(a) Is an adjudication in habeas corpus proceedings a final judgment or decree of the circuit *2 court, where the writ is issued in pursuance to chapter 151 of the Code of 1923?
"(b) If so, is section 6078 of the Code of 1923 broad enough in its scope to provide appeal in such cases?"
In the Criminal Code of 1896 a new section, 4314, appeared, providing "any party aggrieved by the judgment on the trial of a habeas corpus may appeal to the Supreme Court," with added provisions relating to appeals by the state in such cases. This section passed without change into the Code of 1907, section 6245.
In the Code of 1923, section 3238, the quoted provision is stricken out, and the right of appeal limited to the state in case the accused under indictment for a capital offense is admitted to bail. By notes appended to section 3238 it appears the Code commissioner omitted the entire section 6245 of the Code of 1907, upon an expressed doubt of its constitutionality. The Code committee reinserted the section in greatly limited terms. The necessary effect is to restore the law prior to the Code of 1896, except to the limited effect expressed in section 3238, Code of 1923. We therefore approve the holding of the Court of Appeals in Ex parte State re Shirley,
The custody of infants is a matter within the inherent jurisdiction of chancellors or courts of equity. A proceeding by habeas corpus is merely a recognized method of invoking the jurisdiction. The purpose of the proceeding fixes its character. It is a civil proceeding involving the rights of rival claimants inter partes, to be determined upon equitable, as well as legal principles, chief among equitable considerations being the welfare of the infant. Upon these grounds the decree or order in such cases, although proceeding by habeas corpus, is held appealable, under section 6078. Ex parte Tillman, supra; Thomas v. Thomas,
We note that in habeas corpus for bail, application can be renewed in this court under section 3368, Code 1923.
All the Justices concur.