Opinion
No. 35606.
May 22, 1944.
1. COURTS.
The chancery court has full jurisdiction in matter of appointment and removal of guardians, and when that court has appointed a guardian, minor becomes the ward of court and thereafter no other tribunal has any original jurisdiction to interfere with the custody covered by such decree (Const. 1890, sec. 159).
2. COURTS.
The chancery court in exercising jurisdiction over guardianships of minors and their business has general and constitutional jurisdiction, and all facts necessary to sustain jurisdiction or decrees of chancery court are presumed to exist until the contrary appears in the record (Const. 1890, sec. 159).
3. COURTS.
Chancery court having appointed a guardian of the person and estate of minors had exclusive original jurisdiction to determine whether there had been such a change of circumstances as to justify removal of guardian and award of custody to mother of minors, and circuit court had no jurisdiction of mother's petition in habeas corpus to obtain custody of the children (Const. 1890, sec. 159).
APPEAL from the circuit court of Neshoba county, HON. PERCY M. LEE, Judge.
Homer Currie, of Rawleigh, for appellant.
The judgment rendered by the court was unauthorized by law and proper procedure, and is therefore erroneous, void and of no legal effect. Issue had been joined by the filing of the answer of appellees, which put the matter in readiness for the hearing on the petition and answer, and the court therefore had no legal right to entertain the motion to dismiss for want of jurisdiction in this status of the pleadings. Before the motion could have been entertained by the court, with the answer on file, the answer would have had to have been withdrawn and then the motion presented. This is elementary law and procedure.
And further, the court was in error in dismissing the said cause for the reason that on September 1, 1942, an order was taken by the court awarding the custody of the said children to one of the appellees, Lester Coglan; and that thereafter on October 22, 1942, the chancery court appointed the said Lester Coglan as guardian of the said children. These orders of the courts were entered more than one year next prior to the present hearing and this judgment of the court. The entire situation could have changed within this period of time and the circumstances could have been entirely different in this connection at the time of the hearing and rendition of the judgment now in question, all of which is alleged in the petition.
The petition clearly states that it is based upon facts which have occurred since the rendition of the orders of the courts above mentioned, and the cause should have been heard on the merits.
Yarbrough v. Dunnam, 130 Miss. 669, 94 So. 892; Ex parte Pattison, 56 Miss. 161; Ex parte Bridewell, 57 Miss. 177; Hibbette v. Baines, 78 Miss. 695, 29 So. 80; Stegall v. Stegall, 151 Miss. 875, 119 So. 802; Kinnaird v. Lowry, 102 Miss. 557, 59 So. 843; Moore v. Christian, 56 Miss. 408.
Under the allegations of the petition the appellant was entitled to the custody of her said children even though the said Lester Coglan, one of the appellees, had been appointed guardian of the said children.
Foster v. Alston, 6 How. (7 Miss.) 406; McDowell v. Bonner, 62 Miss. 278.
The appellant should have been given a hearing on the merits of her case under the allegations of her petition, and the court erred when it refused same and dismissed the cause.
W.T. Weir, of Philadelphia, for appellees.
The judgment rendered on the trial of any writ of habeas corpus shall be conclusive until reversed, and, whilst so in force, shall be a bar to another habeas corpus in the same cause, or to any other proceedings, to bring the same matter again in question, except by appeal or by action for false imprisonment; nor shall any person so discharged be afterward confined for the same cause, except by a court of competent jurisdiction.
Code of 1942, Sec. 2836.
The petition does not allege sufficient cause to again give the court jurisdiction over the parties to hear and determine the rights and matters and questions in the petition.
Ex parte Pattison, 56 Miss. 161; Ex parte Bridewell, 57 Miss. 177; Ex parte Hamilton, 65 Miss. 98, 3 So. 68.
Where a decree expressly provides that a person was to be guardian of the person and estates of his wards, it fixed the right of custody of the wards in the guardian, until vacated on a proper proceeding for that purpose, and they being wards of the chancery court it alone has the power to determine who shall have the custody of their person and estates, and the right to custody will not be determined on habeas corpus.
Herndon v. Bonner, 97 Miss. 328, 52 So. 513.
On September 1, 1942, in a habeas corpus proceeding in the circuit court of Neshoba County to determine the custody of Ramona and June Coglan, minors, residents of the county, in which proceeding the mother was a party, the court entered a judgment awarding the custody to Lester H. Coglan, an uncle of the children, with right of visitation to the mother. On October 22, 1942, the chancery court of Neshoba County appointed Lester H. Coglan as guardian of the persons and estates of said minors. Thereafter and on December 22, 1943, Ruth Coglan, the mother, filed her petition in habeas corpus in the circuit court, praying that she be awarded complete custody. The circuit court dismissed the petition for want of jurisdiction, and petitioner appeals.
Under Section 159, Constitution 1890, the chancery court has full jurisdiction in the matter of the appointment and removal of guardians, and when that court has appointed a guardian by a decree such as here made, the minor becomes the ward of the court and thereafter no other tribunal has any original jurisdiction to interfere with the custody covered by the decree.
Nothing is averred and nothing is shown which would reveal any invalidity in the decree of the chancery court appointing the guardian of the persons of the minors, and certainly nothing has been averred or shown which would render that decree void. Under certain circumstances a guardian of the person of a minor may be appointed even when the minor has a living parent. The chancery court in exercising its jurisdiction over guardianships and minors and their business has general and constitutional jurisdiction, and all facts necessary to sustain jurisdiction or decrees of the chancery court are presumed to exist until the contrary appears in the record. In re Heard's Guardianship, 174 Miss. 37, 41, 163 So. 685.
Whether the chancery court should have made the decree appointing the guardian, or whether there has been such a change of circumstances since that time as to justify the removal of the guardian and the present award of the custody to the mother, have now become issues to be first presented to the chancery court, and to no other tribunal. The circuit court was correct in declining jurisdiction, — clearly it had none.
Affirmed.