Bruegger v. Patterson

WASTE, C. J.,

In a proceeding in

habeas corpus

the court below awarded the custody of Agnes Patterson Brueg

[170]

ger, a minor, to her father, the petitioner for the writ. A motion is now made to dismiss the appeal taken by the maternal grandparents, respondents in the court below, upon the ground that there is no right to an appeal in a matter of this character, for which reason, it is contended, the court has no jurisdiction to entertain the proceeding.

Until the enactment of section 1506 of the Penal Code, in 1927 (Stats. 1927, p. 1061), it was always the rule in this state that the determination of a court having jurisdiction in proceedings in

habeas corpus

was not subject to review by any other court in any manner, and that the doctrine of

res adjudicata

did not apply.

(In re Perkins, 2

Cal. 424;

Matter of Ring,

28 Cal. 247;

In re Zany,

164 Cal. 724 [130 Pac. 710].) Section 1506 provides only for an appeal to the district court of appeal by the people from a final order made upon the return of a writ of

habeas corpus

discharging a defendant after his conviction in criminal cases prosecuted by indictment or information in a court of record. In all other cases the law remains unchanged. (I

n re Alpine,

203 Cal. 731 [265 Pac. 947].)

Appellants contend that our decisions deal only with cases involving proceedings instituted to secure the release of persons from restraint, and that there is a distinction between such cases and proceedings brought to determine the right to the custody of children. Such a distinction has been drawn by courts in a number of other jurisdictions, where it has been held that an appeal will lie from an order entered in