Larson v. Dutton

Bruce, Ch. J. This is a motion to dismiss an appeal taken from a judgment of the district court, quashing a writ of habeas corpus and [231] awarding to the defendants the custody and possession of a minor child. The motion to dismiss is made on the theory that the judgment or order is not appealable. The Statutes of North Dakota in relation to appeals are as follows: Section 7818: “A judgment or order in a civil action or in a special proceeding in any of the district courts may be removed to the supreme court by appeal as provided in this chapter, and not otherwise.” Section 7841: “The following orders when made by the court may be carried to the supreme court: “1. An order affecting a substantial right made in any action when such order in effect determines the action and prevents a judgment from which an appeal might be taken. “2. A final order affecting a substantial right made in special proceedings or upon a summary application in an action after judgment. “3. When an order grants, refuses, continues or modifies a provisional remedy, or grants, refuses, modifies or dissolves an injunction or refuses to modify or dissolve an injunction, whether such injunction was issued in an action or special proceeding or pursuant to the provisions of § 8074 of this Code; when it sets aside or dismisses a writ of attachment for irregularity; when it grants or refuses a new trial or when it sustains or overrules a demurrer. “4. When it involves the merits of an action or some part thereof; when it orders judgment on application therefor on account of the frivolousness of a demurrer, answer or reply on account of the frivolousness thereof. “5. Orders made by the district court or judge thereof without notice are not appealable; but orders made by the district court after a hearing is had upon notice which vacate or refuse to set aside orders previously made without notice may be appealed to the supreme court when by the provisions of this chapter an appeal might have been taken from such order so made without notice, had the same been made upon notice.” Section 7846: “In all actions tried by the district court without a jury, in which an issue of fact has been joined, excepting as hereinafter provided, all the evidence offered on the trial shall be received. Either party may have his objections to evidence noted as it is offered; [232] but no new trial shall be granted by the district court on the ground that incompetent or irrelevant evidence has been received, or on the ground of the insufficiency of the evidence. A party desiring to appeal from a judgment in any such action shall cause a statement of the case to be settled within the time and in the manner prescribed by article 8 of chapter 11 of this Code, and shall specify therein the questions of fact that he desires the supreme court to review and all questions of fact not so specified shall be deemed on appeal to have been properly decided by the trial court. Only such evidence as relates to the questions of fact to be reviewed shall be embodied in this statement. But if the appellant shall specify in the statement that he desires to review the entire case, all the evidence and proceedings shall be embodied in the statement. All incompetent and irrelevant evidence, properly objected to in the trial court, shall be disregarded by the supreme court, but no objection to evidence can be made for the first time in the supreme court. The supreme court shall try anew the question of fact specified in the statement or in the entire case, if the appellant demands a retrial of the entire ease, and shall finally dispose of the same whenever justice can be done without a new trial and either affirm or modify the judgment or direct a new judgment to be entered in the district court; the supreme court may, however, if it deem such course necessary to the accomplishment of justice, order a new trial of the action. In actions tried under the provisions of this section, failure of the court to make findings upon all the issues in the case shall not constitute a ground for .granting a new trial or reversing the judgment; provided, that the provisions of this section shall not apply to actions or proceedings properly triable with a jury.” We have no douht that the judgment was appealable. We are, however, also of the opinion that, though the order or judgment was as to the particular facts in controversy a final order and appealable, in all of such cases the welfare of the child is the primary consideration, and “the order in such a case is not an unalterable final judgment, but will last only as long as no material change of circumstances require a change of custody.” Knapp v. Tolan, 26 N. D. 23, 49 L.R.A.(N.S.) 83, 142 N. W. 915. That the order or judgment is appealable is to us the inevitable result of our prior decision in Knapp v. Tolan, supra. In the case of [233] Knapp v. Tolan, supra, we held that, “where the writ of habeas corpus is used, not as a writ of liberty in the strict and original sense of the term, but only indirectly and theoretically as such and as a means of inquiring into and determining the rights of conflicting claimants to the care and custody of a minor child, the doctrine of res judicata will apply; and where no material change of circumstances is shown to have arisen since the determination of a. prior proceeding in habeas corpus which has been adjudicated in a court of competent jurisdiction, the writ will not be granted by another court as a matter of right.” “It follows as a result of such a rule that since the judgment rendered upon the facts existing at the time of the trial is binding and conclusive and bars a subsequent proceeding by the parties thereto upon the same facts, the order made thereon is a final order, so far as the facts existing at the time, of the institution of the case and trial are involved; and that such an order is final within the meaning of the statutes for the purpose of review.” Jamison v. Gilbert, 38 Okla. 751, 47 L.R.A.(N.S.) 1133, 135 Pac. 342; Carmack v. Marshall, 211 Ill. 519, 67 L.R.A. 787, 71 N. E. 1077, 1 Ann. Cas. 256; Bleakley v. Smart, 74 Kan. 476, 87 Pac. 76, 11 Ann. Cas. 125; Hall v. Whipple, — Tex. Civ. App. —, 145 S. W. 308, 12 R. C. L. 1258. Even though the trial court, upon proper motion and upon a new showing of facts, may make other orders regarding the custody of the child, and even though the judgment of this court will not preclude any such motion or proceeding, if the welfare of the child demands it, such a possibility ought not and will not deprive the appellant of his right to have the action of the trial court reviewed. Hall v. Whipple, — Tex. Civ. App. —, 145 S. W. 308. The motion to dismiss the appeal is denied, with $15 costs to the appellant.