In Re Holt

JAMES, J.

David F. Holt presented the petition herein seeking a writ under which to have restored to him the custody of his three children, Joseph, Marie, and Catherine, aged respectively ten, nine, and six years/ It was set forth in the petition that the minors were in the custody of Kit Carson and Lou C. Carson, his wife, the latter being a sister of the deceased wife of petitioner. It was further set forth that petitioner’s wife died about four and one-half years ago and that the minor children were left in the custody of the Car-sons at and during the pleasure of petitioner and for such period of time as might be required by him to establish a suitable home within which he might place and care for them; that petitioner had to the best of his ability supported the children during the time they had remained with the Carsons, and had expended as much as five hundred dollars in that behalf ; that petitioner had remarried and had established a home, and had ample means with which to support his minor children; that the said children were not being properly educated and instructed, and that they were kept at a place remote from churches and schools and were living in tents. Further alleged facts were set forth tending to show that Kit Carson was not a suitable person to have part in the raising of the children. Petitioner alleged that the Carsons, upon his demand, refused to relinquish the children into his care and custody. It further appeared by the petition that a proceeding of this same kind was heretofore instituted in the superior court of the county of San Bernardino for the same cause and upon the same alleged facts, and that the court denied' the application and remanded the children to the custody of the Carsons. Upon the filing of the petition here the writ was issued and the children were brought into court with the return as made by their custodians. The respondents preliminarily presented to the court for consideration and in an appropriate way the objection that, as the matters presented by the petition had heretofore been considered in a

habeas corpus

proceeding before the superior court in San

[292]

Bernardino County, the writ could not be maintained here, for the reason that the order as made by the superior court had become

res adjudicata.