Mr. Justice Adams
delivered the opinion of the court.
Plaintiff in error has assigned errors and defendant in error has assigned cross-errors.
The propositions advanced and argued by counsel for plaintiff in error are: That the decree of June 16, 1906, is erroneous and should be reversed; that the decree of May 14, 1907, is correct; that the order of June 18, 1907, rendered on the petition of defendant in error, is void for want of jurisdiction, and because the right to answer was denied; and that the order committing plaintiff in error to prison is void.
Counsel for plaintiff in error argue that the decree of June 16, 1906, is erroneous and must be reversed, because it is neither supported by specific findings of fact in the decree, or by evidence preserved by a certificate of evidence, citing cases. It is the general rule that a decree must be supported in at least one of the ways mentioned; but, manifestly, the rule cannot apply to a decree by consent, in a case in which the court has jurisdiction, and the jurisdiction of the court in the present case is not questioned and cannot be successfully questioned. Cowles v. Cowles, 3 Gilman 435; Ames v. Ames, 148 ib. 321, 338; Ames v. Ames, 151 ib. 280.
Counsel object further that it is impossible to determine from the record whether the decree recommended by the master is the decree entered by the court. We dissent from this view. The decree recommended by the master is a part of his report, and is identified by the O. K. of the solicitors for the parties. The master says in his report, “Thereupon the parties agreed to a disposition of said case in the manner set forth in the draft of a decree submitted with this report, which bears the O.K. of the solicitors for the parties, and also bears the evidence of my .examination and approval thereof.” Add to this that both of the parties admit their consent to the decree and both acted in pursuance of and as ordered by it, until the rendition of the decree of May 14,1907. Plaintiff in error Steele, in his affidavit in support of his amended petition for a change of the decree of June 16, 1906, says of that decree, ‘1 that he was, then and there, induced to enter into some verbal arrangement respecting the custody of said child; that this was done on the solicitation of the master in chancery, and that this arrangement was entered into by this affiant in the fear that he might be wholly deprived of the association of his said child, and was upon the assurance that any arrangement then made would be subject to the revision of this honorable court at any time thereafter.”
Defendant in error, in his answer to the amended petition of plaintiff in error, filed May 11, 1907, says, “That upon the said order of reference, the parties to said priginal bill and cross-bill appeared before the said master and submitted a draft of a decree, which had been agreed upon between them, to said master, which was approved by said master, and the said parties then and there agreed, before the said master, that the substance of said agreement should be embodied in the report of said master and filed in this court as the report of the master in this cause; all of which fully appears from the master’s report filed herein. This respondent, further answering, says that on the sixteenth day of June said final decree w;as duly entered in this cause, and is now in full force and effect.” We do not think counsel for plaintiff in error are in a position to question the validity of the decree of June 16, 1906, and we cannot perceive how plaintiff in error is interested in questioning it, inasmuch as he relies on the decree of May 14, 1907, which grants to him the custody of the child. While counsel for plaintiff in error insist that the decree of May 14, 1907, is valid, counsel for defendant in error have assigned that it is erroneous, and have so argued.
Counsel for defendant in error do not question the jurisdiction of the court to modify, or change the decree of June 16, 1906. When the question involved is the custody of an infant, the prime consideration, and that which takes precedence of all other considerations, is the welfare of the infant (Petition of Smith, 13 Ill. 138), and when a guardian has been appointed, and circumstances have so changed since the appointment as to make it the infant’s interest that a different guardian shall be appointed, a court of chancery has ample power to make the change, and will not hesitate to remove the former guardian and appoint another. In Carmack v. Marshall, 211 Ill. 512, 525, cited by counsel for - defendant in error, the court quote with approval this language from Spelling on Extraordinary Belief: “An application for the writ will be denied, in the absence of new and subsequent facts being presented, by which the state of the case, or the relative claims of the parents to the custody of the child, are altered in some material respect. Where, however, new and important facts can be presented, there is no estoppel upon a second or an indefinite number of applications, even in the cases of children. ’ ’ This is said in respect to writs of habeas corpus involving the question of the custody of infants, but is equally applicable to such cases as the present. Cowles v. Cowles, 3 Gilm. 435, 441, is to the same effect..
We do not understand counsel for defendant in error to question the law as stated; but they say there was no substantial change of conditions to warrant the change of the custody of the infant made by the decree of May 14, 1907.
The petition of plaintiff in error filed April 27,1907, sets forth a substantial change in conditions affecting the interest of the infant, and the affidavits in support of the petition tend to prove its averments, and while it is true that the affidavits in support of and against the petition are conflicting, it was for the court to decide in this conflict of evidence, and we cannot say that the court’s finding is manifestly against the weight of the evidence. The father is the natural guardian of his infant child, and his right to its custody is prima facie before that of all others. 2 Bishop on Marriage, Divorce and Separation, sec. 1162. “As to the control of the person of a minor, the father is guardian by nature.” Perry v. Carmichael, 95 Ill. 519, 530. This prima facie right of the father may, however, be forfeited by misconduct, or by his being or becoming an unfit person to have the custody of the child, the interest of the child being always the primary consideration. Bishop on Marriage, Divorce and Separation, sec. 1163; Schouler’s Domestic Relations, 3d ed., sec. 248.
In the present case the chancellor was, as we think, warranted by the evidence in finding that plaintiff in error was a fit person to have the custody of the child, and that it is for the child’s interest to remain with her father.
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Mr. Justice Adams
delivered the opinion of the court.
Plaintiff in error has assigned errors and defendant in error has assigned cross-errors.
The propositions advanced and argued by counsel for plaintiff in error are: That the decree of June 16, 1906, is erroneous and should be reversed; that the decree of May 14, 1907, is correct; that the order of June 18, 1907, rendered on the petition of defendant in error, is void for want of jurisdiction, and because the right to answer was denied; and that the order committing plaintiff in error to prison is void.
Counsel for plaintiff in error argue that the decree of June 16, 1906, is erroneous and must be reversed, because it is neither supported by specific findings of fact in the decree, or by evidence preserved by a certificate of evidence, citing cases. It is the general rule that a decree must be supported in at least one of the ways mentioned; but, manifestly, the rule cannot apply to a decree by consent, in a case in which the court has jurisdiction, and the jurisdiction of the court in the present case is not questioned and cannot be successfully questioned. Cowles v. Cowles, 3 Gilman 435; Ames v. Ames, 148 ib. 321, 338; Ames v. Ames, 151 ib. 280.
Counsel object further that it is impossible to determine from the record whether the decree recommended by the master is the decree entered by the court. We dissent from this view. The decree recommended by the master is a part of his report, and is identified by the O. K. of the solicitors for the parties. The master says in his report, “Thereupon the parties agreed to a disposition of said case in the manner set forth in the draft of a decree submitted with this report, which bears the O.K. of the solicitors for the parties, and also bears the evidence of my .examination and approval thereof.” Add to this that both of the parties admit their consent to the decree and both acted in pursuance of and as ordered by it, until the rendition of the decree of May 14,1907. Plaintiff in error Steele, in his affidavit in support of his amended petition for a change of the decree of June 16, 1906, says of that decree, ‘1 that he was, then and there, induced to enter into some verbal arrangement respecting the custody of said child; that this was done on the solicitation of the master in chancery, and that this arrangement was entered into by this affiant in the fear that he might be wholly deprived of the association of his said child, and was upon the assurance that any arrangement then made would be subject to the revision of this honorable court at any time thereafter.”
Defendant in error, in his answer to the amended petition of plaintiff in error, filed May 11, 1907, says, “That upon the said order of reference, the parties to said priginal bill and cross-bill appeared before the said master and submitted a draft of a decree, which had been agreed upon between them, to said master, which was approved by said master, and the said parties then and there agreed, before the said master, that the substance of said agreement should be embodied in the report of said master and filed in this court as the report of the master in this cause; all of which fully appears from the master’s report filed herein. This respondent, further answering, says that on the sixteenth day of June said final decree w;as duly entered in this cause, and is now in full force and effect.” We do not think counsel for plaintiff in error are in a position to question the validity of the decree of June 16, 1906, and we cannot perceive how plaintiff in error is interested in questioning it, inasmuch as he relies on the decree of May 14, 1907, which grants to him the custody of the child. While counsel for plaintiff in error insist that the decree of May 14, 1907, is valid, counsel for defendant in error have assigned that it is erroneous, and have so argued.
Counsel for defendant in error do not question the jurisdiction of the court to modify, or change the decree of June 16, 1906. When the question involved is the custody of an infant, the prime consideration, and that which takes precedence of all other considerations, is the welfare of the infant (Petition of Smith, 13 Ill. 138), and when a guardian has been appointed, and circumstances have so changed since the appointment as to make it the infant’s interest that a different guardian shall be appointed, a court of chancery has ample power to make the change, and will not hesitate to remove the former guardian and appoint another. In Carmack v. Marshall, 211 Ill. 512, 525, cited by counsel for - defendant in error, the court quote with approval this language from Spelling on Extraordinary Belief: “An application for the writ will be denied, in the absence of new and subsequent facts being presented, by which the state of the case, or the relative claims of the parents to the custody of the child, are altered in some material respect. Where, however, new and important facts can be presented, there is no estoppel upon a second or an indefinite number of applications, even in the cases of children. ’ ’ This is said in respect to writs of habeas corpus involving the question of the custody of infants, but is equally applicable to such cases as the present. Cowles v. Cowles, 3 Gilm. 435, 441, is to the same effect..
We do not understand counsel for defendant in error to question the law as stated; but they say there was no substantial change of conditions to warrant the change of the custody of the infant made by the decree of May 14, 1907.
The petition of plaintiff in error filed April 27,1907, sets forth a substantial change in conditions affecting the interest of the infant, and the affidavits in support of the petition tend to prove its averments, and while it is true that the affidavits in support of and against the petition are conflicting, it was for the court to decide in this conflict of evidence, and we cannot say that the court’s finding is manifestly against the weight of the evidence. The father is the natural guardian of his infant child, and his right to its custody is prima facie before that of all others. 2 Bishop on Marriage, Divorce and Separation, sec. 1162. “As to the control of the person of a minor, the father is guardian by nature.” Perry v. Carmichael, 95 Ill. 519, 530. This prima facie right of the father may, however, be forfeited by misconduct, or by his being or becoming an unfit person to have the custody of the child, the interest of the child being always the primary consideration. Bishop on Marriage, Divorce and Separation, sec. 1163; Schouler’s Domestic Relations, 3d ed., sec. 248.
In the present case the chancellor was, as we think, warranted by the evidence in finding that plaintiff in error was a fit person to have the custody of the child, and that it is for the child’s interest to remain with her father. Counsel for defendant in error say: ‘ ‘ The appeal of Hohenadel, the grandfather, from the decree of May 14, 1907, did not act as a supersedeas on the decree of June 16, 1906, hut left that decree in full force and effect, as a determination of the rights of the father and grandfather, and did not affect the status of the child as a ward of the court, or the status of Steele, the father, as a guardian jointly with Hohenadel, the grandfather.” In another part of the argument of the same counsel they say of the decree of May 14,1907, it “nullified the decree of June 16, 1906, divested Hohenadel from all share in the custody of the child, as provided in the decree of June 16, 1906, and gave to Steele the entire custody of the child.” This is unquestionably true, and the question is, whether the appeal of defendant in error from the decree of May 14, 1907, changed in anything the effect of that decree on the decree of June 16, 1906, so succinctly described by counsel. We are of opinion that it did not. The sole effect of the appeal was to suspend further proceedings under the decree of May 14, 1907, pending the appeal. The decree was not vacated, nor was its effect in any way changed by the appeal. Dawson v. Cunning, 50 Ill. App. 286; Bank of Commerce v. Franklin, 88 ib. 198; Oakes v. Williams, 107 Ill. 154; Walker v. Doane, 108 ib. 236; Shirk v. Gravel Road Co., 110 ib. 661; Moore v. Williams, 132 Ill. 589.
The petition of defendant in error filed July 18,1907, was, in substance, that the court would enforce the provisions of the decree of June 16, 1906, in respect to the joint guardianship of the child, and so the court understood the petition, as evidenced by the order granting it. The petition is substantially the same as that filed by defendant in error June 24, 1907, and which the court, Judges Windes presiding, dismissed.
The appeal bond of the defendant in error, on the appeal from the decree of May 14, 1907, was filed and approved May 18, 1907. Instantly, on the approval and filing of the appeal bond, the cause was pending in this court. Owens v. McKethe, 5 Gilman 79; Reynolds v. Perry, 11 Ill. 534; Swafford v. Rosebloom, 92 Ill. App. 106.
The main question on the appeal from the decree of May 14, 1907, is whether it is erroneous in changing the provisions of the decree of June 16, 1906, as to joint guardianship of plaintiff in error and defendant in error, and that question is argued in the present case by counsel for defendant in error, and is raised in their cross-assignment of errors, and is also raised by them in their appeal from the decree of May 14, 1907, which appeal has been consolidated with this case for hearing. We are of opinion that the court was without jurisdiction to enforce the provisions of the decree of June 16, 1906, in reference to the joint guardianship of the child, as the- order of July 18, 1907, purports to do. The question whether that order should be enforced could not be before the Circuit Court and this court at the same time. Elgin Lumber Co. v. Langman, 23 Ill. App. 250; Smith v. Chytraus, 152 Ill. 664, 669; Helm v. Boone, 6 Marshall (Ky.) 351; Levi v. Karrick, 15 Iowa 444; Boynton v. Foster, 7 Metc. 415; Elliott on Civil Procedure, sec. 541. This author says: “The overwhelming weight of authority is that an appeal, properly perfected, removes a case wholly and absolutely from the trial court, and places it in the higher tribunal. It is difficult to conceive how it could be otherwise, since it is not possible that two courts can have authority over a single case at the same time.”
Counsel rely on the provision in the condition of the appeal bond expressed in these words: “And also abide by and comply with the terms of said final decree entered June 16,1906, during the time said appeal above prayed is pending in said Appellate Court, then the above obligation to be void,” etc. Assuming that this condition of the appeal bond of defendant in error is binding on him and his surety, a question which we do not decide, it certainly is not binding on plaintiff in error and cannot be enforced against him. But even though we should assume that the court had jurisdiction to make the order of July 18, 1907, we would be compelled to reverse the order committing plaintiff in error to jail for contempt. June 19, 1907, a writ of attachment issued, by order of the court, “directed to the sheriff of this county to execute, commanding him that he bring the body of said Jesse 0. Steele before the bar of this court, to show cause, if any he has, why he should not be punished for contempt of this" court, in wilfully failing and refusing to comply with the order of this court entered herein on July 18, 1907. ’ ’ It appears, by the bill of exceptions, that when plaintiff in error was brought into court on the writ, his attorney asked leave to answer, which the court refused, saying, among other things, “Obey the order first, and then you can make answer.” The writ was issued to bring plaintiff in error into court, to show cause, if any he had, why he should not be punished for contempt, and the refusal to permit him to answer and show cause, if any he had, was error. His alleged offense was not committed in the presence of the court, and he had a right to be heard. On this subject, Bapalje, in his work on Contempt, sec. 611, says: “Contempt of court is of two kinds; that which is committed in open court, and that which is committed out of the view and hearing of the court. For the punish7 ment of the first by commitment and fine, no proceeding need be taken contradictorily with the offender. But for the punishment of the latter, by the same means, the offender must be allowed to offer evidence and argument in his defense, otherwise any judgment which the court may pronounce will be absolutely void.”
In State v. Judges, 32 La. Ann., year 1880, the court holds that to punish for constructive contempt, without an opportunity to be heard, is contrary to the law of the land, and say: “The charge of contempt should not, in any case, be followed by sentence and imprisonment, unless after a rule to show cause has been granted and the party defendant therein heard and permitted to offer evidence and argument. A party in such case may have defenses which the offended authority may not conceive of. Such party would have a right, as any accused in a criminal case, as, for instance, to prove an alibi or a want of identity. It is only after such party has been heard that the court has authority to determine whether the act charged as constructive contempt is so, and if such, to punish by fine or imprisonment, or both, or otherwise, the defendant in the process for contempt.”
While it may be the more orderly practice to enter a rule to show cause, we are not prepared to hold that, in this jurisdiction, an attachment may not issue, in the first instance, on a proper showing. In other respects we concur in the language of the Louisiana court.
We do not think it due process of law, or in accordance with the genius of our institutions, to condemn one without an opportunity to be heard, on a charge of constructive contempt, especially when, as in the present case, he is notified by the process served on him, to show cause, if any he has, why he should not be punished. This, to use the language of Mr. Justice Field, in Windsor v. McVeigh, 93 U. S. 274, 278, “would be like saying to a party, ‘Appear and you shall be heard, ’ and, when he has appeared, saying, ‘Tour appearance shall not be recognized, and you shall not be heard’.” See, also, Ex Parte Kilgore, 3 Tex. Ct. of Appeals 247.
The decree of May 14,1907, will be affirmed, and the order of July 18, 1907, ordering Jesse 0. Steele to deliver the child, Elizabeth Vinni Steele, to John P. Hohenadel, will be reversed, and the order of July 19, 1907, ordering “that the said Jesse O. Steele be committed to the common jail of said Cook county, there to remain for a term of thirty days, unless sooner discharged by law,” will be reversed.
Decree of May 14,1907, affirmed, and the order of July 18,1907, and the order of July 19,1907, that Jesse O. Steele be committed to jail, will be reversed.