McEntire v. McEntire

Supreme Court of Alabama

McEntire v. McEntire

104 So. 804, 213 Ala. 328, 1925 Ala. LEXIS 300

CourtSupreme Court of Alabama

DecidedJune 11, 1925

Docket8 Div. 746.

StatusPublished

Cited by15 cases

This text of 104 So. 804 (McEntire v. McEntire) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

McEntire v. McEntire, 104 So. 804, 213 Ala. 328, 1925 Ala. LEXIS 300 (Ala. 1925).

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Opinion

THOMA.S, J.

The decree of the court denied relief to the wife, and awarded custody of the children "to the father; and complainant . is enjoined from interfering with the custody and control of the children.

The decree of the court properly contained the reservation for the purpose of modifying the decree “as to the custody and control of the children as hereafter may be shown to be proper and for the best interest of the children.” McDaniel v. Youngblood, 201 Ala. 260, 77 So. 674. Such is the nature of like decrees. Ortman v. Ortman, 203. Ala. 167, 82 So. 417; Morgan v. Morgan, 203 Ala. 516, 84 So. 754; Jones v. Jones, 131 Ala. 445, 31 So. 91.

The appeal was taken to this court on February 3, 1923, by giving an appeal bond. There was no supersedeas. The appellee moves this court to dismiss the appeal on the alleged ground that appellant is guilty of contempt in moving the children out of / the state or in secreting them so that their custody cannot be controlled by the process of the court.

It is settled that the removal of wards of the court beyond its jurisdiction is a contempt, and upon appeal the offending party will not be heard on the merits of the cause. Ex parte Pearce, 111 Ala. 99, 20 So. 343; Crabtree v. Baker, 75 Ala. 91, 51 Am. Rep. 424; Jacoby v. Goetter, 74 Ala. 427; Warwick v. State, 73 Ala. 486, 49 Am. Rep. 59; Mussina v. Bartlett, 8 Port. 277; Wright v. Wright, 205 Ala. 519, 88 So. 828; Ex parte Vaughn, 205 Ala. 296, 87 So. 792; Burns v. Shapley, 16 Ala. App. 257, 77 So. 447. The party having the custody of infants pending appeal becomes the agent of the court. Ex parte Roberts, 17 Ala. App. 538, 85 So. 871.

It is made to appear from affidavits on file in support of the motion of respondent in the decree that the complainant has vio *329 lated the order or decree of the court as to •said children and their removal from the jurisdiction of the court pending appeal, and is therefore in contempt, and may not he heard in this court on the merits while -in contempt. Burns v. Shapley, supra; 31 C. J. 991, 992.

The order in the premises was not void, as was the case in Board of Revenue v. Merrill, 198 Ala. 521, 68 So. 971.

The appeal is dismissed.

ANDERSON, C. J., and SOMERVILLE and BOULDIN, JJ., concur.

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THOMA.S, J.

The decree of the court denied relief to the wife, and awarded custody of the children "to the father; and complainant . is enjoined from interfering with the custody and control of the children.

The decree of the court properly contained the reservation for the purpose of modifying the decree “as to the custody and control of the children as hereafter may be shown to be proper and for the best interest of the children.” McDaniel v. Youngblood, 201 Ala. 260, 77 So. 674. Such is the nature of like decrees. Ortman v. Ortman, 203. Ala. 167, 82 So. 417; Morgan v. Morgan, 203 Ala. 516, 84 So. 754; Jones v. Jones, 131 Ala. 445, 31 So. 91.

The appeal was taken to this court on February 3, 1923, by giving an appeal bond. There was no supersedeas. The appellee moves this court to dismiss the appeal on the alleged ground that appellant is guilty of contempt in moving the children out of / the state or in secreting them so that their custody cannot be controlled by the process of the court.

It is settled that the removal of wards of the court beyond its jurisdiction is a contempt, and upon appeal the offending party will not be heard on the merits of the cause. Ex parte Pearce, 111 Ala. 99, 20 So. 343; Crabtree v. Baker, 75 Ala. 91, 51 Am. Rep. 424; Jacoby v. Goetter, 74 Ala. 427; Warwick v. State, 73 Ala. 486, 49 Am. Rep. 59; Mussina v. Bartlett, 8 Port. 277; Wright v. Wright, 205 Ala. 519, 88 So. 828; Ex parte Vaughn, 205 Ala. 296, 87 So. 792; Burns v. Shapley, 16 Ala. App. 257, 77 So. 447. The party having the custody of infants pending appeal becomes the agent of the court. Ex parte Roberts, 17 Ala. App. 538, 85 So. 871.

It is made to appear from affidavits on file in support of the motion of respondent in the decree that the complainant has vio *329 lated the order or decree of the court as to •said children and their removal from the jurisdiction of the court pending appeal, and is therefore in contempt, and may not he heard in this court on the merits while -in contempt. Burns v. Shapley, supra; 31 C. J. 991, 992.

The order in the premises was not void, as was the case in Board of Revenue v. Merrill, 198 Ala. 521, 68 So. 971.

The appeal is dismissed.

ANDERSON, C. J., and SOMERVILLE and BOULDIN, JJ., concur.

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104 So. 804, 213 Ala. 328, 1925 Ala. LEXIS 300, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcentire-v-mcentire-ala-1925.

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