Cooke v. Superior Court

KNIGHT, J.

Prohibition. Petitioner seeks to prohibit the Superior Court of the State of California, in and for the City and County of San Francisco, Department 12 thereof, and the Honorable J. J. Trabucco, judge presiding, from further hearing or determining a proceeding in

habeas corpus

now pending before said Superior Court, involving the custody of Shirley Cooke, a minor child of the age of five and one-half years.

The facts are as follows: James H. Cooke and Hilda Betty Cooke are husband and wife and are the parents of said Shirley Cooke, all of whom are subjects of Great Britain, and, until recently, resided in the province of Ontario, Canada.

It is in substance alleged by the father of said child, in his petition for the writ of

habeas corpus,

that under Canadian law he has been declared the custodian of said child, and that during the month of January, 1925, the mother kidnaped said child, in said province of Ontario, Canada, and unlawfully brought her to the United States.

In the return to said writ of

habeas corpus,

filed by the mother of said child, it is, in effect, alleged that on June 7, 1925, at the instance of the father, in the city of Reno, state of Nevada, she and the child were arrested pursuant to a federal warrant issued by the immigration service of the department of labor of the United States government; that after certain proceedings were had in the state of Nevada (the purpose and effect of which are unimportant here), and in order to expedite the matter of the hearing of said immigration proceedings, she surrendered herself and child into the custody of the immigration officials of San Francisco, where said immigration proceedings were made return

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able and were required to be heard and determined. Later she and the child were releasd on bail, and while at liberty on bail awaiting the hearing and determination of said immigration proceedings, this writ of