In Re McDaniel

[308]

HOUSER, J.

By the petition herein petitioner seeks the custody of her three minor children. As gleaned from the record, the salient facts are that in the state of Oklahoma in a divorce proceeding between petitioner and her husband, petitioner was awarded the custody of their three children who are the subject of this proceeding; that thereafter petitioner took the said children to the city of Fort Worth, state of Texas, where in a rooming-house she abandoned them and left them destitute; that thereupon, after proceedings had in the district court of Tarrant County, Texas, each of said children was adjudged a dependent child and ordered placed in the Tarrant County Orphans’ Home. Thereafter by order of said court the custody of said children was awarded to their aunt, the respondent herein, who thereupon brought the children to this state. It further appears that heretofore, in a

habeas corpus

proceeding instituted in the superior court of Los Angeles County by the mother of the children against their aunt, an order was made by said court that the aunt, respondent herein, retain the custody and control of said minor children.

It is contended by respondent that the order of the superior court is conclusive so far as the instant proceeding is concerned. On the other hand, petitioner urges that in a

habeas corpus

proceeding the court is limited to an order either granting to the petitioner the relief sought by him, or to deny it; and consequently that the order made by the superior court by which the control of the children was awarded to the respondent herein was in excess of the jurisdiction of the court.

While in the superior court the proceeding was denominated an application for a writ of

habeas corpus,

nevertheless, by the petition therein, the issue of the fitness of the petitioner to have the care and custody of the children was tendered to and accepted by the respondent, with the result that at the hearing evidence pertinent to such issue was introduced by each of the parties to the proceeding. As is shown by the judgment or order made by the superior court in said matter, it “appearing to the court at such time that the best interests of said children in respect to their temporal, mental and moral welfare and the preference of said children required that the petition of the said Lorena