
    Matter of the Application of BIRDIE COWAN for a Writ of Haebeas Corpus
    No. 9809.
    312 Pac. (2d) 124.
    Submitted May 8, 1957.
    Decided June 3, 1957.
    Mr. Clayton R. Herron, Helena, for petitioner.
    
      Mr. John W. Mahan, Helena, for respondent.
    Mr. Herron and Mr. Mahan argued orally.
   MR. CHIEF JUSTICE HARRISON:

This is an original proceeding in this court wherein a petition for writ of habeas corpus was filed and presented on May 1, 1957, which disclosed that Birdie Cowan was the natural mother of Roberta Ann Cowan, a minor child of the age of three years; that on the 30th day of April, 1957, the District Court of the First Judicial District of the State of Montana, in and for the County of Lewis and Clark, awarded custody of the child to Bill and Lee McGuire on a petition alleging that they are residents of Spokane, Washington, following a hearing upon a petition filed in said court by Lee McGuire, which order petitioner contends is void for lack of jurisdiction. A writ of habeas corpus was issued directed to Bill and Lee McGuire requiring them to bring before this court the body of the minor child on May 2, 1957. In response to the writ, the body of the child was brought before this court and an oral hearing had. No formal return to the writ having been filed, upon application of counsel for the McGuires, time was granted for that purpose until May 8, 1957; the custody of the child being granted to the mother, Birdie Cowan, until the further order of the court.

On May 8, 1957, return was made and filed herein by Bill and Lee McGuire and a further hearing had. Petitioner filed motion to quash return upon the ground that the return does not plead or set forth any legal cause or justification for withholding custody of the child from the petitioner.

The jurisdictional question in the district court has been discussed by this court in a companion case, State ex rel. Cowan v. District Court, Mont., 312 Pac. (2d) 119, wherein a writ of prohibition has been ordered issued to the district court vacating and dismissing any and all orders made by that court with regard to the custody of Roberta Ann Cowan, and ordering said district court to dismiss the petition filed therein. The only authority for having custody of the child here in question, so far as Bill and Lee McGuire are concerned, rests upon the orders made in the district court which have now been ordered vacated, and the McGuires therefore have not now any legal right to the custody of the child.

There is sufficient restraint in contemplation of law to justify relief by habeas corpus. No legal cause appearing for the restraint or for the continuation thereof, the motion to quash the return is sustained and the relief prayed for is granted.

MR. JUSTICES CASTLES, ANGSTMAN, and ADAIR, concur.  