Yarbrough v. Dunnam

Sep 15, 1922
No. 23007
Versions:94 So. 892
130 Miss. 669
Smith, C. J.,

delivered the opinion of the court.

On the 14th day of January, 1922, the Honorable Robert S. Hall, judge of the Twelfth judicial district, rendered a judgment in a habeas corpus proceeding in which R. Y. Yarbrough was the petitioner and G. R. Dunnam and Annie Dunnam were the defendants, awarding to Yarbrough the custody of his minor son, Gaston Yarbrough, “until the further order of this court.”

*672The Dunnams are Gaston’s maternal grandparents. His mother seems to be dead, though this fact does not clearly appear from the record. On the 21st of June, 1922, the Dunnams filed a petition with the clerk of the court below addressed to the same judge who rendered the judgment hereinbefore referred to, praying that that judgment be set aside, and they be awarded the care and custody of Gaston Yarbrough for at least one-half of the time, and setting forth “that they have discovered new and additional testimony that they are now able to produce which will show their right to have the custody of Gaston Yarbrough,” and “that they had never been permitted to see said child since the 14th day of January, 1922, except on church occasions and public gatherings in the community in which they live.” The clerk by order of the judge issued a summons on this petition for Yarbrough, and the cause was again tried by the judge, who, after hearing the evidence, which was not made a part of and does not appear in the record, rendered a judgment reciting that :

“It is therefore ordered and adjudged that the said R. Y. Yarbrough has been guilty of no misconduct towards said child and Has not been guilty of any conduct to cause him to forfeit the custody of said child, Gaston Yarbrough, but, inasmuch as the court feeling that in its former decree it should have decreed the said G. R. and Annie Dunnam partial custody of said, child, it is here now ordered and adjudged that said G. R. and Annie Dunnam be awarded the custody- of said Gaston Yarbrough for one week in each calendar month until the further order of the court, and when they shall be desirous to have said child with them it will be their duty to call on R. Y. Yarbrough and request the custody of said child, and at the expiration of the one-week period the said R. Y. Yarbrough, to be entitled to the return of said child, shall call on and request same from the said G. R. and Annie Dunnam. He, the said R. Y. Yarbrough, being adjudged the custody of the said child for all the remaining time except -the custody for-*673one week each month, hereby awarded G. R. and- Annie. Dunnam. No costs.are adjudged against either party herein at the present time, it being the specific intention of the court to retain jurisdiction of said cause, to make all necessary and proper orders.”

This case is ruled by Gray v. Gray, 121 Miss. 545, 83 So. 726, and Watts v. Smylie, 116 Miss. 12, 76 So. 684. In the Gray case this court held, first, that the judgment rendered in a habeas corpus proceeding for the custody of a child should “either set the child at liberty or award its custody to the party entitled thereto;” and, second, that the judge presiding in such a proceeding could neither retain perpetual jurisdiction over the custody and welfare of the child nor direct the manner in which the party into whose custody the child is given “shall exercise his lawful authority over such child, or to.direct that he shall thereafter surrender, though temporarily, the custody thereof to another person.” In the Watts case it was held that a judgment rendered in a habeas corpus proceeding is res adjudicata “of the rights of the parties hereto as the facts then existed.”

Reversed, and petition dismissed.