Borg v. Anderson , 73 N.D. 95 ( 1943 )

In a petition for rehearing the respondent points out that § 8878, ND Comp. Laws 1913, provides that the father, if competent to transact his own business and not otherwise unsuitable, is entitled to the guardianship of a minor. This section deals with the appointment of guardians by the county court which under section 111 of the State Constitution is given exclusive original jurisdiction of the appointment of guardians. The appointment of a guardian does not present the identical question involved in a proceeding to determine the custody of a minor. In the latter instance, the district court clearly has jurisdiction to determine to whose custody the minor shall be committed. In such a proceeding as the one now before us, the right to letters of guardianship provided by the Probate Code (§ 8878, ND Comp. Laws 1913) is not controlling as to custody.

As stated in the petition for rehearing: "This case started out to restrain the father from interfering with the custody of his daughter. By stipulation it was converted into something similar to habeas corpus." It is now suggested that the proceeding might now be reconverted to its original status. Compliance with this suggestion is not only undesirable but unfeasible. The case was tried in the district court and presented here on appeal as a proceeding involving the custody of a child. It was briefed and argued as though it were an application for a writ of habeas corpus. Most of the authority cited in the original opinion involves such an application. We have determined that the plaintiff is entitled to custody of the child and upon further consideration of the points set forth in the petition for rehearing we adhere to our former determination which is of the same effect as if rendered on habeas corpus.

In Knapp v. Tolan, 26 N.D. 23, 142 N.W. 915, 49 LRA(NS) 83, this court said:

"The determination of a court on habeas corpus respecting the custody of children stands upon a different footing than a decision in a case where the writ is used as a writ of liberty. Here its decision is res judicata, and precludes the issuance of a second writ upon the same state of facts. 9 Enc Pl Pr 1070. The district court was not bound to deliver the child into the custody of either claimant, but had the power and the duty to leave it in such custody as its welfare seemed to require. Until some new fact or change of circumstances has occurred which has altered the state of the case or the relative claims of the parties in some material respect, the decision of the district court is conclusive upon a subsequent application for a writ of habeas corpus."

Rehearing denied.

CHRISTIANSON, NUESSLE and BURKE, JJ., concur.