
    Rallihan, et al. v. Gordon, Judge.
    (Decided June 19, 1917.)
    Petition for Writ of Prohibition.
    1. Habeas Corpus — No Appeal From Judgment on Writ. — No appeal will lie to this court from the decision of a judge of a circuit or inferior court in a habeas corpus proceeding.
    2. Habeas Corpus — Devision of Judge — When Reviewable in Equity. —Where the welfare of an infant is involved, • the decision of a judge in a habeas corpus proceeding involving the custody of. the child may be reviewed in an' equitable action if either of the parties in interest bring such action to have determined by the chancellor who shall have the custody of the child. In such a case the chancellor should make such orders as may be needful to enable the court to keep the child within its jurisdiction until the equitable action has been determined.
    3. Prohibition — Writ of — When Will Not Issue. — This court will not issue a writ of prohibition against a .circuit or other judge to restrain him from hearing and determining a case of which he has jurisdiction, although an appeal will not lie from his de- ' cisión, unless some very unusual oy extraordinary reason should demand our interference. Where the lower court has jurisdiction, this court will not issue its writ to prevent it from detei’mining the case, unless it plainly appears that great injustice would result or irreparable injury ensue from the decision of the lower court if the writ were not issued.
    BENNETT H. YOUNG, MARION W. -RIPY and HARDIN H. HERR for petitioners.
    J. S. LAURENT and BEN F. WASHER for respondent.
   Opinion of the Court by

Judge Carroll

Denying* writ of prohibition.

On May 29, 1917, the Hon. Thomas E. Gordon, one of the judges of the Jefferson circuit court, on application, made to him by Eobert T. Motschmann, the father of Mary Motschmann, in the manner and form required by section 399 of the Criminal Code, issued, as he was obliged to do under the mandatory provisions of the Code, a writ of habeas corpus against the Detention Home of the Juvenile Court, the Board of Children’s. Guardians, and Mary L. White, matron of the home, commanding them to produce the body of Mary Motschmann, a girl about 13 years of age, before him as judge at a time and place mentioned in the writ. Immediately upon the issual of the writ by Judge Gordon, Mary Eallihan, the grandmother of the child, in her own name and as next friend, and Mary Motschmann, filed their petition in this court, asking that a writ of prohibition be issued against Judge Gordon “prohibiting him from proceeding in any way to take the petitioner,-Mary Motschmann, from the custody of the Detention Home, the Board of Children’s Guardians, and Mary L. White, and the juvenile branch of the Jefferson circuit court, and from issuing any order, proceeding or mandate, judgment or command whereby the child, Mary Motschmann, will be taken out of the state of Kentucky or out of the jurisdiction of the courts of said state or surrendered or delivered to the custody of Robert T. Motschmann, the father of said child, or taken from the care or custody of her grandparents.”

For response to this motion Judge Gordon set out ‘ ‘ that on May 29, 1917,, another petition for a writ of habeas corpus was filed.involving’ the person of the said Mary R. Motschmann, said proceeding being No. 101910 in the Jefferson circuit court. He states that pursuant to said petition he, as judge of the Jefferson circuit court, Common Pleas Branch, Second Division, issued a writ of habeas corpus on May 29, 1917, directing the Board of Children’s Guardians, the Detention Home, and Mary R. White, matron of said home, to produce the body of the said Mary R. Motschmann before the judge of the Jefferson circuit court, Common Pleas Branch, Second Division, on the 29th day of May, 1917, at the hour of four o’clock p. m.

“He states that in response to said writ the Board of Children’s Guardians, the Detention Home, and Mary R. White, produced the body of said child at the time and place mentioned in said writ, and in addition thereto filed their joint response in which they claimed the right to retain the custody of said child under and by virtue of proceedings theretofore had in the juvenile court in the Jefferson county court. That the issue thus presented by the response aforesaid related to the jurisdiction of the juvenile court of Jefferson county, and this defendant at the time and place mentioned was proceeding to hear and determine said issue when notified of the temporary restraining’ order issued by this court in this cause.

“He states that the sole question presented to this defendant for decision was whether or not the juvenile court had jurisdiction or had acquired jurisdiction in the proceeding which had been instituted before it, and that as to this question the defendant had neither formed nor expressed any opinion or decision, and had been afforded no opportunity of either hearing the case then presented or reaching_ any conclusion with respect to the rights of parties therein; that at no time did this defendant give any intimation of any opinion held or to be held by him on the issue presented, and accordingly he denies that by reason of the former action he would have delivered the custody of said child into the custody of said Eobert T. Motschmann.”

Although it has no direct relation to the present proceeding, it may be said in passing that on May 22nd, on the petition of Eobert T. Motschmann, a writ of habeas corpus was issued by the Hon. "William H. Field, one of the judges of the Jefferson circuit court, commanding Mary Eallihan to produce in court the body of Mary Motschmann on May 25, and at the request of Judge Field the hearing of the application was transferred to the branch of the court presided over by Judge Gordon, and when the application came up for hearing, Mary Eallihan filed her response. After hearing the evidence and argument of counsel, Judge Gordon entered an order adjudging the custody of the infant to her father, Eobert T. Motschmann, and directing Mary Eallihan to deliver the person of the infant to him. Pursuant to said order the child was delivered by Mary Eallihan to Eobert T. Motschmann on May 28th. Shortly after the delivery of the child to Motschmann, it was taken from his custody by an order of the juvenile court of Jefferson county and placed in the Detention Home of the court. Thereafter, the second writ as heretofore set out was issued by Judge Gordon.

That Judge Gordon had jurisdiction to issue the writ and hear and determine the case, is put beyond question by the provisions of the Criminal Code that may be found in sections 399-429, inclusive. These code provisions also impose a heavy penalty upon any officer authorized to grant a writ who shall-refuse to do so when legally -applied to. Under the circumstances stated, we are now asked to issue a writ of prohibition against Judge Gordon to restrain him from hearing or determining the issues that may arise on the responses to the writ 'issued by the judge on May 29th. "What disposition of the case Judge Gordon will make, or how he will or should determine it when the issues are made up and the evidence heárd, is a matter that even the judge himself could not, of course, decide in advance of a hearing on the issues and the evidence thereon. And of course it is not possible that we, in advance of the hearing and disposition of' the case, should forecast what his decision will be. But, notwithstanding this, we are asked to restrain Judge-G-ordon from hearing and determining a matter that he has jurisdiction to hear and determine, and this because it is said no appeal will lie to this court'from his decision if he should award the custody of the child to the father, who it is said will at once take the child out of the state and out of the jurisdiction of the courts of the state.

That no appeal will lie to this court from the decision of Judge Cordon has been settled in Broadwell v. Com., 98 Ky. 15; Mann v. Russell, 22 Ky. L. R. 1340; Weddington v. Sloan, 15 B. Mon. 119, and Gill on Petition, 92 Ky. 118. But it does not follow from the fact that an appeal will not lie from the decision of Judge Cordon that we should issue a writ restraining him from hearing and determining a question which the law gives- him the jurisdiction to hear and determine.

It is true that in Board of Prison Commissioners v. Crumbaugh, 161 Ky. 540, a temporary as well as a final writ of prohibition was issued by this court to restrain Crumbaugh, as police judge, from hearing or giving judgment in a habeas corpixs proceeding pending before him in which one Messer, a convict confined in the Eddy-ville penitentiary, was seeking to be discharged from the prison, in which he was lawfully confined. That, however, as will appear from this brief statement, was a very extraordinary case and the decision was put upon the ground that the police judge was not only proceeding out of his jurisdiction, but that the Board of Prison Commissioners had no adequate remedy if the police judge discharged the prisoner, as he announced from the bench he intended to do.

We have no such case before us. It would be an abuse of the power vested in us by.section 110 of the constitution if we should restrain circuit or other judges from hearing and determining cases-which they have the jurisdiction to hear and determine, unless some very unusual or very extraordinary reason should demand our interference'. To establish a precedent like this would be to invite writs of prohibition in every case in which one of the parties apprehendéd that there might be a decision adverse to him in the case he sought to prohibit the jndge from trying and determining.

Nor will the fact, that no appeal lies from the decision of the judge or court sought to be restrained, furnish ground for the issual of the writ, as in addition to the fact that the complaining party has no adequate remedy by appeal, it must further plainly appear that great injustice would result or irreparable injury ensue from the decision of the lower court or judge if the writ were not issued. Rush v. Denhardt, 138 Ky. 238; Carey v. Sampson, Judge, 150 Ky. 460; Ohio River Contract Co. v. Gordon, Judge, 170 Ky. 412; Cohen v. Webb, 175 Ky. 1; Hieatt, Judge, v. Settle, 176 Ky. 160.

Under ordinary circumstances we would rest this opinion here, but in view of the fact that the present as well ai the future welfare of an infant is involved, we will add that the decision of Judge Gordon, whatever it may be, will not be final or irreviewable in an equitable action if either of the parties interested, after Judge Gordon has handed down his decision, bring such action to have determined by the chancellor who shall have the custody of the child. If such an action is brought, the chancellor will and should make and enforce, pending its disposition, such orders consistent with the welfare of the child as may be needful to enable the court to keep_ it within its jurisdiction and retain supervision over its custody and care until the equitable action has been finally determined. Bedford v. Hamilton, 153 Ky. 429.

The writ is denied.  