Opinion
April 10, 1967.
April 21, 1967.
Courts — Jurisdiction — Power of court of first instance to proceed after service with writ of certiorari issued by appellate court — Custody of children — Appeal from order granting right of visitation — Subsequent decree of custody entered by court below.
1. A court of first instance cannot further proceed with a cause after it has been served with a writ of certiorari issued by an appellate court.
2. In this case, in which it appeared that plaintiff filed a petition against her former husband, requesting custody of their daughter, then in the custody of the father; that after testimony was taken in the court below, an order was entered, on August 17, 1966, that custody of the child be given to the mother from that date until September 7, 1966, for the purpose of visitation; that on September 26, 1966, the mother took the instant appeal, and certiorari was filed in the court below on September 27, 1966; and that on November 10, 1966, a decree was entered by the court below awarding custody to the father and granting the mother the right of visitation; it was Held that because of the pendency in the appellate court of the appeal of September 26, 1966, the court below did not have jurisdiction to enter its last decree awarding custody.
3. It was Held that, in view of the fact that the order of August 17, 1966, had been complied with, and that the child had been returned to the father, the appeal of September 26, 1966, which was the only matter before the appellate court, had become moot; and, therefore, the decree of the court below dated November 10, 1966, was vacated without prejudice, and the instant appeal was quashed.
Before ERVIN, P.J., WRIGHT, WATKINS, MONTGOMERY, JACOBS, HOFFMAN, and SPAULDING, JJ.
Appeal, No. 843, Oct. T., 1966, from order of Court of Common Pleas of Delaware County, No. 9924 of 1966, in case of Commonwealth ex rel. Phyllis Dustin v. Marvin Hiepler. Decree vacated without prejudice and appeal quashed.
Habeas corpus for custody of child. Before SWENEY, P.J.
Order entered that custody of child be given to relatrix for specified period for purpose of visitation. Relatrix appealed, and certiorari filed in court below. Decree entered by court below awarding custody to father and granting mother right of visitation.
William C. Beatty, for appellant. David J. Natale, and ReDavid, Orlowsky, Maffei Natale, for appellee.
Submitted April 10, 1967.
On August 10, 1966, Phyllis Dustin filed in the Court of Common Pleas of Delaware County a petition against her former husband, Marvin Hiepler, requesting custody of their five-year old daughter, Marlys Hiepler. The child was then in Media in her father's custody by virtue of an order of the Superior Court of Maricopa County, Arizona, which order had been entered as part of a decree awarding the husband a divorce. On August 16, 1966, testimony was taken before President Judge SWENEY. On August 17, 1966, an order was entered that custody of the child be given to the mother from that date until September 7, 1966, for the purpose of visitation. On September 26, 1966, the mother took the instant appeal. Our certiorari was filed in the court below on September 27, 1966.
On November 10, 1966, a decree was entered by the lower court awarding custody to the father and granting the mother the right of visitation for one month each summer. Because of the pendency in this court of the appeal of September 26, 1966, the court below did not have jurisdiction to enter this decree. A court of first instance cannot further proceed with a cause after it has been served with a writ of certiorari issued by an appellate court: Commonwealth ex rel. Podvasnik v. Podvasnik, 198 Pa. Super. 107, 181 A.2d 843; Corace v. Balint, 418 Pa. 262, 210 A.2d 882. Moreover, in view of the fact that the order of August 17, 1966, was complied with and the child was returned to the father in Media, the appeal of September 26, 1966, which is the only matter before us, has become moot. We therefore enter the following order:
The decree of the court below dated November 10, 1966, is vacated without prejudice, and the instant appeal is quashed.