Harmsen v. Fizzell

354 Mich. 60 (1958)

92 N.W.2d 631

HARMSEN v. FIZZELL.

Docket No. 98, Calendar No. 47,013.

Supreme Court of Michigan.

Decided July 15, 1958.

Rehearing denied September 9, 1958.

Certiorari denied January 19, 1959.

A.H. Lee, for plaintiff.

James L. Colman, for defendants Fizzell.

A.G. Preston, Jr., for defendants Johnston.

Certiorari denied by Supreme Court of the United States January 19, 1959.

CARR, J. (dissenting).

This case was first submitted at the June, 1957, term of Court. On December 24, 1957, the holding of the circuit judge was sustained by a 4-to-4 decision, Mr. Justice SHARPE writing for affirmance. The case is reported 351 Mich 86. Following the retirement of Justice SHARPE on December 31st last, a motion for a rehearing was granted by a divided Court and the cause has again been submitted at the present term on the briefs and appendices of counsel originally filed.

When the case was previously before us the issues of fact involved were thoroughly considered and discussed. In his opinion Justice SHARPE set forth the legal principles at issue and his reasons for upholding the action of the circuit court. I am in accord therewith. No purpose would be served by restating those reasons or enlarging thereon. The prior disposition of the case should not be changed on rehearing.

The order of the circuit court should be affirmed, with costs to appellee.

*63 DETHMERS, C.J., and KELLY, J., concurred with CARR, J.

EDWARDS, J.

This matter came before the Court for decision on December 24, 1957, with the result of affirmance of the action of the circuit judge by an equally-divided Court, with Mr. Justice SHARPE writing for affirmance and the writer for reversal.

Subsequent thereto timely application for rehearing was filed and, with a change in the composition of the Court, was approved by a 5-3 vote on March 4, 1958.

The previous decision involved 2 legal issues of some import: First, whether a writ of habeas corpus may properly be used to attack procedural errors in a neglect case before the juvenile court, involving temporary custody of children, when the record clearly shows jurisdiction to hear and dispose of the case; and, second, whether in a habeas corpus proceeding pertaining to child custody, the circuit judge hearing same must, while giving consideration to the rights of a petitioning parent, take into account also the best interest and welfare of the child.

The opinion entered by the writer in Harmsen v. Fizzell, 351 Mich 86, and signed by 3 other members of this Court, answered the first question in the negative and the second in the affirmative. For the purpose of decision of this case on rehearing, the prior opinion is incorporated herein by reference.

The judgment of the circuit court is reversed. Costs to appellants.

KAVANAGH, J., concurred with EDWARDS, J.

SMITH, J. (concurring).

This case involved the grant or denial of a writ of habeas corpus. The only issue involved in the case, as in all habeas corpus cases, was the jurisdiction of the court, here the *64 jurisdiction of the juvenile division below. We held that there was jurisdiction. With this holding we again express our concurrence. The great historic writ is a "palladium of liberty," not a mere writ of error. Once a court has the parties and the subject matter properly before it, as did the juvenile division in this case, its jurisdiction is not so feeble that it comes or goes with procedural errors made or resisted, objections claimed or foregone, proofs withheld or deficient, judgment sound or judgment reversible. Thus we properly denied the writ and upheld the involved jurisdiction of the Berrien county probate court.

The matter of probate court jurisdiction, sitting in juvenile division, will be found discussed in more detail in the case of Fritts v. Krugh, 354 Mich 97.

Reversed. Costs to appellants.

BLACK and VOELKER, JJ., concurred with SMITH, J.