Knapp v. Tolan

142 N.W. 915, 26 N.D. 23, 1913 N.D. LEXIS 36

• Court: North Dakota Supreme Court
• Decided: August 19, 1913
• Status: Published

Opinion

Bbuce, J.

(after stating the facts as above). This is not a proper case for the issuance of the writ of habeas corpus. It may be the general rule, and the rule of this state, that the doctrine of res judicata is not applicable to tbe decision of one court of justice on a writ of babeas corpus in a criminal case, or where the writ is in the true sense of the term “a writ of liberty” (see Church, Habeas Corpus, § 386; Carruth v. Taylor, 8 N. D. 166, 77 N. W. 617; State v. Beaverstad, 12 N. D. 527, 97 N. W. 548; Re Snell, 31 Minn. 110, 16 N. W. 692). The situation, however, is very different where the writ is used in a manner which was not contemplated at the time of its creation, and not as a writ of liberty, but as a means of obtaining the possession or control of one whose personal liberty is only in a remote and technical sense involved or endangered. In the case before us the question is not really whether the infant is restrained of its liberty, but who is entitled to its custody. It is true that the charge is that the child is’ unlawfully restrained, etc., but the gist of the complaint is not that the child is unlawfully deprived of its liberty, but that such restraint is in prejudice of the rights of the mother to its custody. The case is really one of private parties contesting private rights, under the form of proceedings on habeas corpus. In such cases both principle and considerations of public policy require the application of the doctriuc of estoppel to judicial proceedings. It never has been, and never can be, the law that in such a case both the child and its custodians can be dragged from court to court and subjected to a ceaseless round of discomfort and litigation at the whim of the petitioner. See State ex rel. Lembke v. Bechdel, 37 Minn. 360, 5 Am. St. Rep. 854, 34 N. W. 334, 7 Am. Crim. Rep. 227; Mercein v. People, 25 Wend. 64, 35 Am. Dec. 653; People ex rel. Lawrence v. Brady, 56 N. Y. 182; Freeman, Judgm. § 329. The determination of a court on habeas corpus respecting the custody of children stands upon a different footing than a decision in a case where the writ is used as a writ of liberty. Here its decision is res judicaia, and precludes the issuance of a second writ upon the same state of facts. 9 Enc. Pl. & Pr. 1070. The district court was not bound to deliver the child, into the custody of either claimant, but had the power and the duty to leave it in such custody as its welfare seemed to require. Until some new fact or change of circumstances has occurred which has altered the state of the case or the relative claims of the parties in some material respect, the decision of the district court is conclusive upon a subsequent application for a writ of habeas corpus. Church, Habeas Corpus, § 387; 9 Enc. Pl & Pr. 1070; State ex rel. Lembke v. Bechdel, 37 Minn. 360, 5 Am. St. Rep. 854, 34 N. W. 334, 7 Am. Crim. Rep. 227; Mercein v. People, 25 Wend. 64, 35 Am. Dec. 653; People ex rel. Lawrence v. Brady, 56 N. Y. 182; Freeman, Judgm. § 324. In the case at bar no change of circumstances is shown. The district court not only dismissed the writ, but remanded the child to the custody of the respondent. This it had the power to do, and its action is not, in the absence of a material change of circumstances, subject to review in this or any other.court in a subsequent habeas corpus proceeding. In such a class of cases, indeed, the remedy by habeas corpus is of an equitable nature. It is in the welfare of the child, and not in the desires of the claimants, that the law is chiefly interested.

The writ is denied.