State ex rel. Futch v. Rockett

MONROE, C. J. It appears from the petition addressed to this court, with the exhibits annexed and the return thereto, that on March 25, 1914, John N. Futch, relator herein, confirmed a judgment by default which had been entered in the district court for the parish of Caddo, decreeing an absolute divorce between him and Homie R. Futch, his wife, and awarding him the custody of a boy of the age of about four years, issue of the marriage; that thereafter, on October 5, 1914, he presented a petition to the Court of Appeal, Second Circuit, alleging the facts above stated, and further as follows: That he had placed the minor, Edward Loys Futch, temporarily, in the custody of his father, David L. Futch, in Union parish; that Homie R. Futch (whose maiden name was Homie Rockett), by artifice and false representations, had obtained possession of the child; that she and her father, Joseph C. [1093] Rockett, were unlawfully detaining him and depriving him of his liberty, and that they refused to deliver him to relator, wherefore be prayed for the issuance of a writ of babeas corpus, and an order for tbe writ was thereupon made by one of tbe members of tbe Court of Appeal. Thereafter Mrs. Homie Futch appeared through counsel, and excepted to the jurisdiction of the court, and of the one judge of the court, alleging that: “This court has no jurisdiction of this case, as the issues averred on are not appealable to this court; and, further, that the habeas corpus proceeding sued out * * * can only be tried and passed upon by the entire membership, or a majority, of this court: that the jurisdiction vested by the Constitution of Louisiana in Courts of Appeal * * * to issue, try, and determine proceedings of habeas corpus is only in aid of the appellate jurisdiction, * * * and such proceedings can only be tried by the judges of the court sitting as a court.” Reserving her rights with respect to the exception thus filed, and further excepting that relator had not alleged the absence of the judge of the district court, Mrs. Futch then answered, admitting that she has possession of the child, and alleging that she refuses to deliver it to relator by virtue of her right “as its natural and legitimate mother” ; that her possession has never been legally devested; that she permitted it to spend part of its time with its paternal grandfather, but did not regain possession of it by artifice or misrepresentations; that the child is of tender age, requires her care, and is better eared for by her than it would be by relator; that relator has obtained no valid judgment of divorce against her, and has no lawful authority to take and keep the child; that, if-any such judgment was rendered, it is an absolute nullity, for the reason that' she was never cited or served with any paper in such divorce proceeding and never authorized any one to accept or acknowledge service of citation or petition for her; that she did not know of the existence of such a proceeding until the filing of the application for habeas corpus; and that the judgment therein rendered, if any there be, was obtained by fraud and collusion, without her knowledge and consent, and is absolutely void. Joseph C. Rockett, father of Mrs. Futch, answered, denying that he has possession of the child, but alleging: That he and his wife are able and willing to take charge of it; “that relator is a barber, and has recently married a wife [if she can be so called, which is denied]; that his said wife is a trained nurse, who is kept away from home during a great part of her time, so that the child, if returned to the father, will necessarily be neglected; and that it will be better cared for, physically, mentally, and morally if placed in respondent’s home, at least during the early years of its life.” The ease, as thus presented, was tried before two of the members, constituting a quorum, of the Court of Appeal, and, after hearing testimony and argument, that learned court gave judgment recalling the writ of habeas corpus, and dismissing the proceeding ; and it is the ruling so made that we are now called upon to review. On Motion to Dismiss. [1] Defendants have filed a motion, in the nature of an exception to the jurisdiction of this court, which reads substantially as follows: “That this court is without jurisdiction to review the decisions of the Court of Appeal in the proceedings under the writ of habeas corpus instituted in the said court * * * as in this case, the Supreme Court * * * having no appellate jurisdiction * * * in habeas corpus cases and the proceedings therein originating in the Court of Appeal; * * * that, in the exercise of its power. * * * to issue the writ of habeas corpus and try and determine the proceedings thereunder, the action and decision of the Court of Appeal * * * is not subject to review by the Supreme Court, * * * the appellate court’s jurisdiction in such cases being original and concurrent with that of the Supreme Court, and its constitutional powers * * * not inferior to those of the Supreme Court; hence its decisions cannot be reviewed by the Supreme Court.” [1095] The Constitution confers authority to issue writs of habeas corpus as follows: “Art. 93. The Supreme Court, and each of the justices thereof, shall have power to issue the writ of habeas corpus, at the instance of any person in actual custody, in any case where it may have appellate jurisdiction.” “Art. 104. * * * The Courts of Appeal,, and each of the judges thereof, shall have power to issue the writ of habeas corpus at the instance of any person in actual custody within their respective circuits.” “Art. 115. The district judges shall have power to issue the writ of habeas corpus at the instance of any person in actual custody in their respective districts.” Other provisions of the Constitution pertinent to the present inquiry read: “Art. 85. The Supreme Court, except as hereinafter provided, shall have appellate jurisdiction only, which jurisdiction shall extend * * * to suits for divorce and separation from bed and board, and to all matters arising therein; * * * to all matters of' adoption, emancipation, legitimacy and custody of children. * * * ” “Art. 94. The Supreme Court shall have control and * * * supervision over all inferior courts. * * * ” “Art. 101. * * * It shall be competent for the Supreme Court to require by certiorari, or otherwise, any case to be certified from the Court of Appeal to it for its review and determination, with the same power and authority in the case, as if it had been carried * * * by appeal to” said court. “Art. 102. No judgment shall be rendered by the Courts of Appeal without the concurrence of two judges * * * and should two judges * * * be absent, recused or unable to serve, the remaining judge shall appoint district judges or lawyers with the aforesaid qualifications, to sit in the case.” The Code of Practice, art. 905, declares that: “When the Supreme Court reverses the judgment' of an inferior court, it shall pronounce on the case the judgment which the lower court should have rendered, if it be in possession of all the facts and testimony to enable it to pronounce definitively.” It is clear from the foregoing that it was competent for the one judge of the Conrt of Appeal to issue the writ- of habeas corpus herein, since the application was made on behalf of a person alleged to be in actual custody within the jurisdiction of the court, and it was immaterial that such person was also within the jurisdiction of one of the district courts, since the jurisdiction of the respective tribunals and judges in such case is concurrent. It is equally clear that, as two judges of the Court of Appeal constitute a quorum, with authority to act as the court, and as the issues presented by the return of the writ were determined by two judges so acting, the question of the authority of one judge to have determined those issues is not in the case. [2] It is also clear that, while the authority of this court, and of its members, to issue the writ of habeas corpus, is limited to cases in which the court “may have appellate jurisdiction,” and though in such cases the Courts of Appeal may also issue such writs at the instance of persons in actual custody within their respective circuits, yet that this court, being vested with plenary “control and supervision over all inferior courts,” and being specially authorized to review the decisions of the Courts of Appeal in “any case” decided by them, may exercise that authority with the same propriety in a ease involving the issuance of the writ of habeas corpus as in any other. The motion to dismiss is therefore overruled.