Summary
In Ex parte Pruitt, 207 Ala. 261, 92 So. 426, it was held that even though an order transferring a cause from the circuit court to a juvenile court may not have been valid, the parties having consented, and submitting without objection to the juvenile court's assumption of jurisdiction, and allowing: the cause to proceed to judgment, neither party could complain of any lack of jurisdiction on appeal from an order awarding custody of two minor children.
Summary of this case from Clark v. HollandOpinion
6 Div. 554.
April 6, 1922.
Smith, Wilkinson Smith, of Birmingham, for petitioner.
Brief of counsel did not reach the Reporter.
Clark Williams and J. H. Willis, both of Birmingham, for intervener.
The matter was res adjudicata as between the parties. 150 Ala. 475, 43 So. 578; 27 Ala. 228; Cooley, Const. Limit. 79. Appeal, and not certiorari, is the proper remedy. 44 Ala. 333; 2 Spelling, § 1930.
Conceding, without deciding, that the order of the circuit court of June 9, 1921, declining to proceed to a determination of the cause therein pending between John A. Pruitt, as petitioner, and Ruth Pruitt, as respondent, and directing that the cause be transferred to the juvenile court of Jefferson county, to be there heard and determined, was in excess of the authority of the circuit court, and therefore null and void; and conceding, also, for the occasion only, that the writ of certiorari is the proper procedure for reviewing and annulling the order in question, if the petitioner were entitled to that relief — we are nevertheless of the opinion that, on the records before us, the relief herein sought must be denied.
The primary contention of counsel for petitioner is that section 5 of the Juvenile Court Act (Gen. Acts 1919, p. 130), in so far as it authorizes the circuit court to decline to exercise its general jurisdiction in respect to the custody of minor children, and to transfer such causes to a juvenile court invested with concurrent jurisdiction thereof, is in violation of those provisions of the Constitution, which establish the chancery jurisdiction in chancery courts, or in other courts of statutory creation and of equal dignity and power, and which, by implication, as argued, guarantee to litigants the right to resort to such courts for the adjudication of their causes arising under the general jurisdiction of equity. See Const. 1901, § 146. Our view of the case, however, renders unnecessary a decision of that question.
The Legislature has the unquestioned power to vest in inferior courts of statutory creation any of the powers or any portions of the jurisdiction of the chancery or circuit courts, to be exercised concurrently with those courts, if the latter are not completely and constitutionally supplanted. Const. 1901, §§ 148, 139, 171; State ex rel. Winter v. Sayre, 118 Ala. 1, 24 So. 89.
Very clearly, section 5 of the Juvenile Court Act invested that court with the jurisdiction to hear and determine all causes involving the custody of minor children, and it therefore had concurrent jurisdiction with the circuit court, in equity, of the subject-matter of the petition of June 1, 1921.
It follows that, if the parties to that proceeding, pursuant to the order of June 9, 1921, consented to its transfer to the juvenile court by appearing in that court, and submitting without objection to its assumption of jurisdiction thereover, and allowing the cause to proceed to judgment, all of which is shown by the certified record of that court, neither party can now complain of any want of jurisdiction in the premises. The court being competent to try the cause, the parties can always waive the absence of formal jurisdiction of their persons and of the particular proceeding by giving their consent thereto in any appropriate way. Woolf v. McGaugh, 175 Ala. 299, 57 So. 754.
Whether the order of June 9, 1921, was valid or invalid at the time it was made, it is clear that it was ratified and confirmed by the conduct of the parties thereafter — as effectually so as if they had consented thereto expressly and contemporaneously in the circuit court. The judgment of the juvenile court, fully clothed with jurisdiction, stands as a valid and binding adjudication of the rights of the parties. Under these conditions, the petitioner herein is not entitled to the relief prayed, and the petition must be dismissed.
Petition dismissed.
ANDERSON, C. J., and McCLELLAN and THOMAS, JJ., concur.