Opinion
August 19, 1929.
1. APPEAL: Juvenile Court: Statute. Section 2610, Revised Statutes 1919, providing that "an appeal shall be allowed to the child from any final judgment of delinquency or dependency, or a final order of commitment made under the provisions of this article," etc., means that the child is entitled to an appeal (a) from a final judgment determining that his status is that of delinquency or dependency, and (b) if so adjudged, to an appeal from an order of commitment.
2. ____: ____: Neglected Child: Dependency: Commitment Reserved. A "neglected child" being defined by the statute (Sec. 2591, R.S. 1919) as any child "who is . . . dependent upon the public for support, . . . or who is suffering from cruelty or depravity of its parents," a judgment of the juvenile court finding that the infant was a "neglected child" and that he "is suffering from the cruelty and depravity of his mother" and adjudging that he "be made a ward of this court" and ordering that he be remanded to the probation officer, "commitment to be made later," was a judgment of "dependency" as that term is used in Section 2610 declaring that "an appeal shall be allowed to the child from any final judgment of delinquency or dependency;" for upon the rendition of said judgment the child became dependent upon the public for support.
3. ____: Allowable to Neglected Child: Denied to Delinquent Child. It cannot be that the Legislature, by enacting a statute (Sec. 2610, R.S. 1919) declaring that "an appeal shall be allowed to a child from any final judgment of delinquency or dependency," intended to allow an appeal to a delinquent child and not one to a neglected child. And further, if an appeal from a judgment of a juvenile court determining the status of a child is to be allowed only to a delinquent child, and not to a neglected child, then the word "dependency" in said statute is entirely superfluous.
4. ____: General Right: Final Judgment: Commitment. Even if the particular staute declaring that "an appeal shall be allowed to the child from a final judgment of delinquency or dependency" could be construed to apply only to a child adjudged by the juvenile court to be a delinquent child, and not to a neglected child, still the child is entitled to an appeal under Section 1469, Revised Statutes 1919, declaring that any party to a suit aggrieved by any judgment of any circuit court in any civil cause, from which an appeal is not prohibited by the Constitution, may take an appeal. A judgment determining the status of the child, but containing no order committing the child to some person or institution, is a final judgment, and by the sweeping terms of said Section 1469 the child is entitled to an appeal from said final judgment, although it recites, "Commitment to be made later."
5. ____: Habeas Corpus: Final Judgment: Appeal Disallowed: Supersedeas: Remedy by Mandamus. A child wrongfully deprived of an appeal from a judgment of the juvenile court determining his status to be that of a delinquent or neglected child and made a ward of the court, cannot by habeas corpus obtain his discharge from the custody of the probation officer to whom the judgment remands him until such time as a suitable home may be found for him. The judgment is not a nullity, and the child is not entitled to his discharge simply because an appeal has been disallowed. The remedy in such case is by mandamus to compel the allowance of the appeal, where the time for taking the appeal has not expired. The statute (Sec. 1876, R.S. 1919) does not permit the allowance of a writ of habeas corpus where a person restrained of his liberty may be relieved by an appeal, and supersedeas occurs only when the appeal is allowed.
Corpus Juris-Cyc. References: Appeal and Error, 3 C.J., Section 1131, p. 1101, n. 7. Habeas Corpus, 29 C.J., Section 11, p. 19, n. 41. Infants, 31 C.J., Section 227, p. 1103, n. 61; Section 240, p. 1109, n. 27; Section 247, p. 1112, n. 7.
PETITIONER REMANDED.
E.B. Silvers for petitioner.
(1) In this action we are not attempting to compel the juvenile court to grant us an appeal. We are not attempting to substitute habeas corpus for mandamus or for any other remedy by which an appeal might be secured. We stand here squarely on the proposition that habeas corpus lies to test the validity of any imprisonment, and to discharge petitioner from any unlawful detention "under any pretense whatever." (2) In the present case, two wrongs have been done, viz; (a) The child has been denied an appeal by which the proceedings below may be reviewed for error; (b) he has been deprived of liberty, for the denial of appeal denies a supersedeas. To secure a review we may resort to mandamus. But to secure liberty we resort to habeas corpus. To secure a review by mandamus will require time. But to secure liberty, the law and the Constitution guarantee us the speedy writ of habeas corpus. So the real question here is not whether habeas corpus is the proper remedy; but whether Young Campbell's detention is unlawful. Is the probation officer's custody a lawful one, or is it not? If the law had been followed by the juvenile court, where would Young Campbell be now? With the probation officer or with his mother? If with the mother, then we are entitled to habeas corpus to secure that end. (3) When the juvenile court rendered judgment and remanded Young Campbell to the probation officer, its action may have been lawful, and the consequent detention of the child would then be lawful. But when the court refused an appeal and supersedeas it did an unlawful act. And therefore the further detention of the child is unlawful. Without the unlawful act of the court in denying appeal, the child would not now be detained. The present detention rests upon this unlawful act and is therefore an unlawful detention. The statute provides that habeas corpus lies to discharge one: "Where, though the original imprisonment was lawful, yet, by some act, omission or event, which has taken place afterward, the party has become entitled to be discharged." Sec. 1909, R.S. 1919. When we filed affidavit for appeal, this child was entitled to be discharged either with or without bond. And we are asking the Supreme Court to enforce this right to discharge, either with or without bond. (4) The whole case really hinges on the question. Does an appeal lie from this judgment of the juvenile court? (a) The Juvenile Court Act provides for an appeal in neglected child cases. Sec. 2610, R.S. 1919. "An appeal shall be allowed to the child from any final judgment of delinquency or dependency, or final order of commitment made under the provisions of this article, and from any modification of such order." State v. Woerner (Mo. App.), 294 S.W. 423. This section is not confined to delinquency and dependency cases; but, by its terms, includes a final order of commitment made under the provisions of this article. (b) This is a civil cause. Nothing in the statute prohibits an appeal. And being a civil action, then an appeal would lie from a final judgment in this action. Secs. 1469, 2592, R.S. 1919. (5) This was a final judgment, within the meaning of Section 1469, and was not a final order of commitment within the meaning of Section 2610. Sec. 1521, R.S. 1919. A judgment is final when it determines the issues and rights of the parties. 36 C.J. 441, sec. 258; Russell v. St. L. Sub. Ry Co., 154 Mo. 428. It settles the child's status.
Butcher Knoop and H.D. Kissenger for respondent.
(1) The appeal was properly refused. Thomas v. Elliott, 215 Mo. 598; Schuepbach v. Gas Light Co., 135 S.W. 29. When a statute, in relation to special proceedings, is complete in itself and covers the entire subject it is exclusive and if it does not provide for an appeal no appeal will lie. Ackerman v. Green, 201 Mo. 231. If an appeal is provided for in a proceeding in the juvenile court, in a "neglected child" cause, it is from the final order of commitment and the order of the juvenile court made in the case of Young Campbell is not a final order of commitment. State ex rel. v. Porterfield, 258 S.W. 722. (2) An appeal is not provided in this case by Section 1469. Since Section 2610 deals with the matter of appeals under article 6 of Chapter 21, the provisions of that section become exclusive and if any appeal is provided it is by virtue of that section. Ackerman v. Green, supra. (3) Section 2610 does not provide for an appeal in a "neglected child" case. There is no provision in this section for an appeal from a judgment in a "neglected child" case, as there is for an appeal from a judgment of delinquency.
Habeas corpus. Frances B. Campbell presented to this court her petition alleging that she is the mother of Young Campbell, an infant four years of age, and that Young Campbell is unlawfully deprived of his liberty in Jackson county, Missouri; that July 25, 1928, Young Campbell was committed to the custody of the petitioner by decree of the Circuit Court of Jackson County, in a case wherein Claire Campbell was the plaintiff, and petitioner was defendant, the same being a decree of divorce; that the said child remained in the custody of petitioner until May 16, 1929, when upon on information filed in a Juvenile Court of Jackson County one A.W. Sipe, Juvenile Officer in said court, took the child from petitioner's custody and placed him in the custody of one Mrs. Mitchell S. Tucker, and that thereafter proceedings were had in said Juvenile Court by which the following judgment was rendered:
"Comes Young Campbell in person and by parents and by Probation Officer Sipe, who heretofore filed complaint charging that the said Young Campbell is a neglected child: The court after hearing the evidence and being fully advised in the premises thereof finds that the said Young Campbell is a minor of the age of three years, and is a neglected child within the meaning of the statutes provided in such cases, and is suffering from the cruelty and depravity of his mother, Frances B. Campbell, in that the said Young Campbell has been severely beaten by his mother, Frances B. Campbell.
"WHEREUPON it is ordered by the court that the said Young Campbell be made a ward of this court and that he be remanded to the probation officer of this court until such time as a suitable home may be found for him. Commitment to be made later."
The petitioner further alleged that thereafter, at the same term, June 29, 1929, for and on behalf of said child she filed a motion for new trial in said matter which was by the court overruled, and thereupon she filed an affidavit and application for appeal from said judgment, offering to give such bond as might be fixed by the court for such appeal.
That the said Juvenile Court, July 11, 1929, refused to grant said appeal or to fix a bond in connection therewith; that the refusal to grant said appeal was unlawful and by virtue thereof the said Young Campbell is now unlawfully in the custody of A.W. Sipe, Juvenile Officer. Wherefore the petition prays for a writ of habeas corpus.
The writ was issued returnable July 30, 1929; the petitioner waived the production of the body of Young Campbell. Sipe and Mrs. Mitchell Tucker filed separate returns in effect admitting the allegations of fact in the petition.
In the files appears a certified copy of the proceeding in the Juvenile Court of Jackson County, including the judgment above set out. The several parties agreed to submit the case upon brief, and it has been so submitted.
The petitioner bases her claim upon two propositions: (1) that she had a right to appeal from the judgment and finding that Young Campbell was a neglected child; and (2), that the denial of that appeal by the Juvenile Court was unlawful, and therefore the order of the Juvenile Court remanding the infant to the probation officer was unauthorized and the said infant unlawfully restrained of his liberty.
Respondents deny each of these propositions.
I. Section 2610, Revised Statutes 1919, the chapter relating to juvenile courts, has the following:
"An appeal shall be allowed to the child from any final judgment of delinquency or dependency, or final order of commitment made under the provisions of this article, and from any modification of such order, and may be demanded on Appeal. the part of the child by its guardian, by either parent or by its previous custodian, or by any person within the fourth degree of kindred of such child."
Appeal in this case is demanded by the mother of the child. It is contended by the respondents that an appeal does not lie in this case because Young Campbell was adjudged to be a "neglected" child and neglected child is not mentioned in that section.
Respondents further contend that the part of the quoted section which might apply to a case of this kind is the clause: "or final order of commitment made under the provisions of this article." Petitioner argues that such part does apply and authorizes appeal in this case. We do not agree with either of them. It will be noticed that the judgment remanded the child to the probation officer, and adds, "Commitment to be made later."
To understand what the Legislature had in mind in allowing appeals under Section 2610, the general purpose of the Juvenile Court Act must be considered. It provides first for the determination of the status of an infant which may be brought under its jurisdiction. That status having been determined a commitment to some suitable person or institution is then provided for.
By Section 2610, Revised Statutes 1919, an appeal is allowable from the final judgment determining the status of the infant, "delinquency or dependency," and also later from an order of commitment as a separate and distinct proceeding. It is apparent that in the legislative mind the preliminary proceeding determining the status of the infant was a final judgment from which an appeal could be taken. That the commitment was another and subsequent proceeding from which appeal would lie.
Section 2595 provides for the commitment by the juvenile court of a "neglected" child to some good, reputable person of good moral character or of an association willing to receive it, or an institution incorporated under the laws of this State; or, "the court may return the child to the parent or guardian under the supervision of the probation officer." Now that sort of commitment occurs after a judgment determining the child to be neglected.
II. The law, Article VI. Chapter 21, Revised Statutes 1919 (amended in some sections by Act of 1923, Laws 1923, p. 153), brings within the jurisdiction of the juvenile court two classes of children — "delinquent" and "neglected." A Delinquent "neglected child" and a "delinquent child" are or Neglected defined. [Sec. 2591, R.S. 1919; Act of 1923, Laws Child. 1923, pp. 153-4.] These two classes embrace all children of which the juvenile court may take notice. "Dependent child," is not defined in the article; neither is the word "dependency." Nor is any provision made for dealing with a "dependent child" or a condition of "dependency." A dependent child, therefore, must belong to one or the other of the two classes defined, "delinquent" or "neglected;" possibly it might belong to either.
What then is a final judgment of dependency as mentioned in Section 2610? We must resort to the ordinary meaning of the word "dependency" or "dependent" in order to determine to what it applies. A dependent child naturally is one dependent upon another for support. Or the definition might be narrowed to a child dependent upon the public for support.
A "neglected child" is thus defined, in Section 2591:
"For the purpose of this article the words `neglected child' shall mean any child under the age of eighteen years, who is destitute or homeless, or abandoned, or dependent upon the public for support, or who habitually begs or receives alms, is found living in any house of ill-fame, or with any vicious or disreputable person, or who is suffering from cruelty or depravity of its parents, or other persons in whose care it may be."
When the juvenile court adjudged that Young Campbell was "suffering from the cruelty and depravity of its mother," and ordered that the child be made a ward of the court and remanded to the probation officer, the child thereupon became dependent upon the public for support. That could not be other than a judgment of "dependency," as the term is used in Section 2610.
It cannot be that the Legislature intended to allow an appeal in the case of a delinquent child and not allow an appeal in the case of a neglected child. If an appeal from a judgment of the juvenile court determining the status of a child is allowed only to a delinquent child and not to a neglected child then the word "dependency" in the appeal section is entirely superfluous. By the judgment in this case the court made Young Campbell a dependent child if he was not so before, and he had a right to appeal under Section 2610.
Even if that section could be construed as not to apply there would be a right of appeal under Section 1469, which provides that any party to a suit aggrieved by any judgment of any circuit court in any civil cause from which an appeal is not prohibited by the Constitution may take an appeal. The right to appeal comes under the sweeping terms of that statute unless we should say that there is no final judgment determining the status of this Young Campbell until he is committed to some person or institution. But Section 2610 clearly contemplates that there is a final judgment whenever the status of a child is determined.
III. The petitioner's brief asserts that she is not attempting to substitute a habeas corpus for a mandamus, or for any other method by which an appeal might be secured, but Habeas Corpus: stands squarely on the proposition that habeas Denial of corpus will lie because the detention of Young Appeal. Campbell is unlawful after an unwarranted disallowal of an appeal.
In taking this position petitioner in effect asserts that an erroneous order by the juvenile court, having jurisdiction of the persons and the subject-matter of the case, is unlawful, such as to make the judgment a nullity, though not appealed from. The petitioner calls attention to the provision of Section 2610 which provides that an appeal shall act as a supersedeas if the bond in such sum as is fixed by the court shall be given, etc., or that the trial court may in its discretion dispense with such bond and that an appeal will act as a supersedeas. The effect of that statute is that when appeal is granted, either with or without bond, according to the discretion of the court, the appeal acts as supersedeas and the child remains in the custody of the petitioner, from whom it was taken. The supersedeas, however, occurs only when the appeal is allowed. The application for an appeal does not act as a supersedeas.
It is pointed out by respondents that Section 2610 is in conflict with Section 2594, which provides in the closing sentence: "Pending the disposition of any case, the child may be retained in custody of the person having charge of the same, or may be kept in some place of detention provided by the county, or by any association having for one of its objects the care of delinquent or neglected children, or in such other custody as the court may direct."
If this may apply to a case pending on appeal it would be in conflict with Section 2610, and we would be called upon to harmonize, if possible, that conflict. But this case is not pending on appeal and has not been pending on appeal. It was pending in the Juvenile Court of Jackson County when this petition was filed; it was not finally disposed of in the juvenile court because the term at which the judgment was rendered was not ended, and there was still time for appeal. The court, under the provision quoted from Section 2594, had complete authority to dispose of the custody of the child. There was no appeal and no supersedeas.
We cannot agree to the proposition of the petitioner that because the judge of the juvenile court erred in refusing to allow the appeal that it thereby lost all jurisdiction of the case. That court had rendered a final judgment determining the status of this neglected child, and that judgment stands unappealed from. The error in disallowing an appeal did not nullify that judgment. Only a reversal on appeal could do that.
The petitioner's remedy was plain. She could have proceeded by mandamus to compel the allowance of the appeal. The remedy was expeditious; it would have caused no more delay than the proceeding which the petitioner has undertaken in this court. The very fact that the statute permits an appeal makes the remedy complete. We are cited to no authority which will warrant a contrary conclusion.
Petitioner refers to the statute relating to habeas corpus. Section 1876, Revised Statutes 1919, provides that every person restrained of his liberty may prosecute a writ of habeas corpus "except when, according to the provisions of this article, such person can be neither discharged nor bailed, nor otherwise relieved."
An appeal here would "otherwise relieve" the child detained.
Section 1907, Revised Statutes 1919, provides that in a proceeding by habeas corpus it is the duty of the court to remand the party where he is detained by virtue of the final judgment or decree of any court of criminal or civil jurisdiction. That would seem to settle the determination of this case. A court of competent jurisdiction has adjudged the disposition of the party in this case. The judgment is unappealed from and this court has no discretion except to remand Young Campbell to the probation officer of the Juvenile Court of Jackson County.
It is so ordered. Atwood, Blair, Gantt and Ragland, JJ., concur; Walker and Frank, JJ., absent.