
    Gladys Dean Stewart Clements v Tennessee Welfare Department. Claude A. Clements et al. v. Walter Lee Morgan et al.
    
      (Knoxville,
    
    September Term, 1957.)
    Opinion filed December 6, 1957.
    Rehearing Denied February 6, 1958.
    
      0. W. McKenzie, Dayton, for Claude A. Clements and others.
    L. D. Millee, Chattanooga, for Walter Lee Morgan and others.
    Bess Blake, Nashville, for Department of Public Welfare.
   Me. Justice Peewitt

delivered the opinion of the Court.

The above two canses have heretofore been consolidated and were orally argued at the bar of this Court.

At the outset reference is made to our opinions appearing in 201 Tenn. 94, 296 S.W. 2d 874 to 879 inclusive, the style of the first case being Clements v. Morgan, and the cause In re Clements, both of said opinions being for publication and dated December 7, 1956.

Following the rendition of the opinion, the effect of which was to turn over the two children in question to the Department of Welfare, the petitioner, Mrs. Gladys Dean Clements was cited and adjudged in contempt of court by the Chancery Court, in that she had failed to turn over said children to the Department. She then purged herself of contempt by turning over the children to the Department. Then Mrs. Clements moved to Rhea County, Tennessee, and filed an adoption proceeding in the Circuit Court of that County, to adopt said children. It seems in that proceeding the Department of Welfare was made a party, filed a plea of res adjudicata setting out all of the facts and circumstances surrounding the adjudication in Hamilton County, and asked that the petition of adoption in Rhea County be dismissed. The Circuit Judge heard the complainant’s proof in said proceeding at Dayton, overruled the plea of res adjudicata and awarded the custody of the children in question to the then petitioner, Gladys Dean Clements. But the trial court failed to allow the Department to make further defense after overruling the plea of res adjudicata. Thereupon, the Department of Welfare filed a petition for cer-tiorari and supersedeas in this Court and the record is before us in the Rhea County proceeding by reason of this petition. The contempt proceedings in the Chancery Conrt of Hamilton Connty are hereby appeal.

It is insisted by Gladys Dean Clements, appellee in the Rhea Connty canse, and appellant in the Hamilton Connty canse that since the former opinions heretofore referred to, it appeared that the merits of the case were not passed upon by the Chancellor at Chattanooga, and snch being the case Mrs. Clements had a right to file her petition for adoption in the Rhea Connty case.

On the other hand, the Department of Welfare insists that the decree of Chancellor Cnrry of Chattanooga in the former proceeding, was final wherein the custody of the two children were awarded to the Department, and that snch proceedings were res adjudicate/, of the controversy between the parties and therefore the Circnit Conrt Jndge at Dayton had no jurisdiction to try the adoption case. That in said adoption proceedings at Chattanooga, petitioner had fnll opportunity to present her case.

We are of the opinion that the plea of res adjudicata filed in the Circnit Conrt at Dayton by the Department of Welfare was not good. It seems clear from the entire record that there has never been an adjudication of this cause on the merits. However, we are of the opinion that the Department of Welfare should be given a fnll opportunity to appear in the Circnit Conrt at Dayton and make any defense it sees proper on the question of the best interest of the children involved.

This being our view of the case the judgment of the Circnit Conrt awarding custody of the children to Mrs. Clements will be set aside and vacated. All parties interested will be given a full opportunity to present their proof. As to the case coming from the Chancery Court of Hamilton County on the question of contempt, the decree of the Chancellor is affirmed.

Reference has been made to Coleman v. Coleman, 190 Tenn. 286, 229 S.W.2d 341, where it was held that the exclusive jurisdiction of the cause continued in the court first obtaining jurisdiction. This is true but the decree entered by the Chancellor in the Hamilton cause was final, and thus disposing of the case it might be added we think the above disposition of the cause will protect the interest of the minors and this is the primary thought of the Court. See Johnson v. Johnson, 185 Tenn. 400, 206 S.W.2d 400; Davenport v. Davenport, 178 Tenn. 517, 160 S.W.2d 406.

It results that the petition for certiorari and superse-deas in the Rhea County cause will be sustained and the cause remanded to the Circuit Court at Dayton to be proceeded consistent with this opinion.

Mrs. Clements will pay the costs of these appeals, both in the contempt cause and the adoption case.  