In Re Gury

HOUSER, J.

In substance, the facts herein appear to be as follows: By an interlocutory decree rendered in a suit for divorce, the custody of an infant son of the parties to the action was awarded to the husband. Pursuant thereto the mother voluntarily executed the judgment by surrendering possession of the child to the father. No appeal from

that

judgment was ever taken by either of the parties to the action. One week after said interlocutory judgment was rendered, the mother filed a notice of motion to modify “the interlocutory decree and judgment of divorce.” When the motion came on for hearing, although two witnesses were sworn, and testified in the matter, no “new evidence” was introduced, nor any relevant circumstances shown, differing in any material degree from what appeared on the trial of the action. With reference to such motion, the amended minutes of the court show that “judgment heretofore entered is now modified by the court, and the findings are modified by the court. Custody of minor child, David Gury, is awarded to the plaintiff. The defendant is hereby granted a stay of execution on said judgment for the period of ten days in which to start his appeal.” Nearly a month thereafter a so-called “amended interlocutory decree of divorce” was signed by the court and regularly entered, which decree contained a provision by which the custody of the child was awarded to the mother. Following the entry of such “amended” decree, the father appealed to the Supreme Court therefrom, and said appeal is still undetermined. After the rendition of said latter decree and before the expiration or the ten days’ stay of execution from the date of the entry of the “judgment” ordered by the trial court (however, not within ten days from the date of the minute order thereof), but preceding the date of the appeal therefrom, the mother, aided by two strangers, “without

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legal authority, without any execution issued on account of said order, or legal process of any kind or nature whatever,” forcibly took the child from the possession of the father; and some weeks thereafter the father peaceably regained the possession of the child. Thereupon, through the medium of a writ of

habeas corpus

issued out of the superior court, the mother sought to obtain the possession of the child. On the return to the writ and a hearing in said matter the Superior Court denied any relief to the mother, but affirmed the legal right of the custody of the child in the father. It is in such circumstances, as shown by the records and files herein, and (on stipulation of the parties) as produced from a like source in the Superior Court, that again, through the offices of a writ of