I concur in the order dismissing the writ, and in the conclusions voiced in the main opinion touching jurisdiction and the right of this court to inquire into such jurisdiction. But I am unwilling, by silence, to lend implied consent to the proposition that the judgment relied upon as conclusive of petitioner's right to the custody of this child could, under any state of facts, be enforced in this state through the medium of a writ of habeas corpus. This is exactly what petitioner seeks to accomplish by this proceeding. He insists that this court has no alternative, but must execute said judgment by granting his petition, because the federal constitution and laws require that full effect must be given to judgments rendered in a sister state. Granting his premise, the conclusion does not follow.
Judgments rendered in Kansas have no extraterritorial effect as judgments. (Cole v. Cunningham, 133 U.S. 107, [10 Sup. Ct. 269]; Black on Judgments, sec. 682.) Judgments rendered there will not be enforced here, unless a judgment thereon is recovered in this state. (13 Am. Eng. Ency. of Law, p. 986; Cooley's Constitutional Limitations, p. 43, note; Freeman on Judgments, secs. 559, 564, 575; Brown v. Campbell, 100 Cal. 646, [38 Am. St. Rep. 314, 35 P. 433]; McElmoyle v. Cohen, 13 Pet. (U.S.) 312; Wisconsin v. Pelican Ins. Co.,127 U.S. 265, [8 Sup. Ct. 1370]; Huntington v. Attrill, 146 U.S. 657, [13 Sup. Ct. *Page 83 224]; Code Civ. Proc., sec. 1913.) Such judgments will, as a general rule, be accepted as conclusive proof of rights finally adjudicated by courts of a sister state having jurisdiction of the parties and subject matter. (Huntington v. Attrill,146 U.S. 657, [13 L. ed. 224]; Hanley v. Donoghue, 116 U.S. 1, [6 Sup. Ct. 242]; Freeman on Judgments, 559; Cooley's Constitutional Limitations, p. 586; 13 Am. Eng. Ency. of Law, p. 983.) But, unfortunately for petitioner's contention, judgments relating to the custody of children fall within an exception to this general rule. Such judgments have never been accorded conclusive force, even as evidence, in another state. No person has an absolute right to such custody, for the welfare of the third party — the minor — is always an open and paramount question, and courts of another state may, and will, award the custody of minors, regardless of such judgments. (Kentzler v. Kentzler, 3 Wn. 166, [28 Am. St. Rep. 21, 28 P. 370]; In re King,66 Kan. 698, [97 Am. St. Rep. 399, 72 P. 263]; Woodworth v.Spring, 86 Mass. 321; Kline v. Kline, 57 Iowa, 386, [42 Am. Rep. 47, 10 N.W. 825]; Matter of Rice, 42 Mich. 530, [4 N.W. 284]; Matter of Heather Children, 50 Mich. 261, [15 N.W. 487]; In re Stockman, 71 Mich. 192, [38 N.W. 876]; Kraft v.Wickey, 4 Gill J. (Md.) 332, [23 Am. Dec. 569]; Williams v.Storrs, 6 Johns. Ch. 340, [10 Am. Dec. 343]; Black on Judgments, sec. 861; 2 Bishop on Marriage and Divorce, 2d ed., p. 604; 13 Am. Eng. Ency. of Law, pp. 960, 965, 968; Cooley's Constitutional Limitations, pp. 497, 584.) If the jurisdiction of the court and absolute verity of the modified judgment before us be granted, it could hardly have greater legal effect or confer greater powers than an order constituting the petitioner guardian of the person of this minor. If this be true, then our courts are not bound to recognize either his authority or the judgment on which it rests. (Code Civ. Proc., sec. 1913; Hoyt v. Sprague, 103 U.S. 631;Morgan v. Potter, 157 U.S. 197, [15 Sup. Ct. 590]; Curtis v.Smith, 6 Blatchf. 537, [Fed. Cas., No. 3505]; Cooley's Constitutional Limitations, p. 44; 13 Am. Eng. Ency. of Law, p. 966, and notes; cases cited supra.)
But, waiving this rule, which seems conclusive of the question before us, and giving this judgment all the effect *Page 84 claimed for it, by the most ultra authority supporting it, as evidence, in the courts of another state, we are forced to the conclusion that, even in a direct proceeding to obtain a judgment thereon, the courts of this state would be at liberty to disregard it. It cannot be claimed that it must be given greater effect here than in Kansas. It could be modified there whenever circumstances rendered such change proper. (Dassler's Kan. Gen. Stats. 1901, sec. 5138.) It is as inconclusive here as there. It would be open to inquiry and change in that state, and it is no more sacred in this. (In re King, 66 Kan. 698-700, [97 Am. St. Rep. 399, 72 P. 263].) In short, such judgments are universally held subordinate to the welfare of the child and any court in this state might act as parens patriae to this child, and award its custody to the mother, or other proper person, notwithstanding this judgment. (Black on Judgments, sec. 861; Code Civ. Proc., sec. 1913; Cooley's Constitutional Limitations, pp. 496, 497, 584; Avery v. Avery, 33 Kan. 1, [52 Am. Rep. 523, 5 P. 418]; In re Bort, 25 Kan. 308, [37 Am. Rep. 255]; In re King, 66 Kan. 698, [97 Am. St. Rep. 399, 72 P. 263]; People v. Allen, 40 Hun (N.Y.), 611;Dubois v. Johnson, 96 Ind. 6; De La Montanya v. De La Montanya,112 Cal. 116, [53 Am. St. Rep. 165, 44 P. 345]; De LaMontanya v. De La Montanya, 112 Cal. 133, [44 P. 354].) This being true of a direct proceeding, it seems to me that habeascorpus is not adapted to the hearing of equitable and interstate questions involved, and that it cannot be extended to such cases without inconsistency and incongruity. All authorities agree that habeas corpus will extend only to the point of freeing the minor from unauthorized restraint. But it is said by those supporting its use in cases involving the custody of children that, the office of the writ having been accomplished, the court will go beyond this, and exercise its equitable powers to protect and conserve the welfare of the minor whose custody is sought. This, confessedly, involves a supplemental inquiry and adjudication equitable in its nature, based on considerations entirely foreign to, and beyond the scope and purpose of, this writ. It is an admission that the writ is inadequate in such cases; and even the authorities sanctioning its use admit such inadequacy, and confess thathabeas corpus "gives no jurisdiction to *Page 85 appoint guardians of infants." (Church on Habeas Corpus, secs. 445, 446, 451, 452; Spelling on Extraordinary Relief, secs. 1236-1242; Hurd on Habeas Corpus, pp. 476-534.) It seems more logical to adopt the course pursued by Southard, J., inState v. Cheesman, cited by the last-named author at pages 554 to 556 of his valuable treatise. (See, also, Church on Habeas Corpus, sec. 452.)
Habeas corpus has its legitimate and time-honored scope, and so peculiar is the purpose, nature, and dignity of this writ that it cannot be coupled with other remedies without creating confusion. Even an enlightened and commendable desire to abolish useless forms cannot be carried to the extent of making every writ an agency to right every wrong and vindicate every right without obliterating distinctions designed to prevent confusion and chaos. This is illustrated in the record and briefs before us. The petition and return both show that a similar application was heard and denied by the superior court of Sacramento county. It is argued by the attorneys for Mrs. Culp that the decision of Judge Shields is final, while the attorneys for the petitioner contend that it has no binding force whatever in this or any other court. The authorities generally seem to hold that such decisions are res judicata. (Freeman on Judgments, sec. 324; Church on Habeas Corpus, sec. 387; Spelling on Extraordinary Relief, sec. 1152.) But under our practice repeated applications for a writ of habeas corpus may be made, and it is at least doubtful whether an appeal from the decision of the learned judge of the superior court would lie. This is hardly reconcilable with the theory of finality, and points a reason why this proceeding is peculiarly inappropriate and inadequate to the determination of such questions under the practice in this state. If this remedy may be invoked, then the supplemental inquiry and adjudication is a necessary corollary under all the authorities sanctioning such practice. If the decision rendered on this supplemental hearing be not final, then the equitable powers of a court can be invoked, and its decision will count for nothing, even in the eyes of the person who sought and was denied its aid. Under our system the petitioner cannot be prevented from making repeated applications. He may, perchance, be dissatisfied with the decision of this court, and, *Page 86 if so, he may apply to another department of the superior court of Sacramento county, or to the supreme court, for relief denied him here. But, if this be the rule, how fares the other party to this proceeding? Compelled to submit to repeated inquiries involving her character and fitness to retain the custody of her child, the first adverse decision will send her out of the court without child, without appeal, and justly without confidence in the theory that all stand equal before the law. This is not fair or just. It cannot be the law. It might be said that she, in turn, could resort to repeated applications of the same nature; but, if this be admitted, it furnishes an unanswerable argument against such a practice. In my opinion the petitioner should be compelled to seek relief through ordinary legal channels, because the writ of habeascorpus is inappropriate and inadequate to the proper consideration and final adjustment of important questions and rights here involved.
I am also unwilling that the decision in which I concur shall, under any circumstances, be considered as implied authority sustaining the doctrine that the district court of Shawnee county, Kansas, retains jurisdiction of this child during her minority, regardless of her presence within or absence from that state. There can be no question that during the time occupied by the proceedings leading to the modified judgment this minor and her mother were in California. The modified judgment shows on its face that the minor was not within the jurisdiction of the court. A decree of this kind can only be made, or continue operative, while the child "remains within the jurisdiction." (Cooley's Constitutional Limitations, p. 584; De La Montanya v. De La Montanya, 112 Cal. 133, [44 P. 354]; Code Civ. Proc., sec. 1913.) The mother, after her divorce, certainly had a right to fix her domicile wherever she pleased, and I can see no good reason, in law or logic, why she could not change the domicile of the child by taking her with her. I can find nothing in the judgment, the laws of Kansas, or the general current of authority to forbid such removal or change. Some courts have held that, where the other parent is permitted to see the child, the court may forbid removal from the jurisdiction, and one decision is to the effect that forbiddance is implied in such a case. (Campbell v. Campbell,
*Page 87 37 Wis. 206; Hewitt v. Long, 76 Ill. 399; Miner v. Miner, 11 Ill. 43. ) This rule is founded on a substantial reason, and I entertain no doubt that, under such circumstances, comity alone would prompt the courts of this state to aid the courts of another state in conserving rights reserved to the other party to the litigation. But here the original decree absolutely debarred the husband and all his agents and kin from seeing, or in any way interfering with the custody of, this child, and I have found no case, and believe none can be found, which holds that, under these conditions, the minor may not be taken from the jurisdiction. (Griffin v. Griffin, 18 Utah, 98, [55 P. 88]; Adams v. Adams, 62 Ky. 169; Woodworth v. Spring,86 Mass. 323-326; In re D'Anna, 117 N.C. 462, [23 S.E. 431].) In the case of Stetson v. Stetson, 80 Me. 483, [15 A. 60], this right is expressly recognized, but the court also laid down the inconsistent and untenable proposition that, notwithstanding such right, the jurisdiction continues. There is nothing in Estate of Henning, 128 Cal. 214, [79 Am. St. Rep. 43, 60 P. 762], to support the opposite view. That decision rests upon the express prohibition found in section 248 of the Civil Code, and on the presumption that no change of domicile was effected by the permissive removal. Had Mrs. Culp fled from Kansas for the apparent purpose of evading a law or judgment of that state, a very different question would be presented. But I know of no rule of law or reason which prevents a person from doing that which no law or court has forbidden.
It may be said that this prohibition is implied from the power to modify the judgment. But, if implications are to be indulged, it is equally as reasonable to construe section 5138 of Dassler's General Statutes of 1901, as permitting such modification at any time while the minor remained within the jurisdiction. We have seen that most of our courts, including those of Kansas, recognize the rule that other courts may consult the welfare of the child, regardless of judgments rendered in another jurisdiction. This rule is irreconcilably in conflict with the idea that the child may not be removed from the state, and that the jurisdiction is continuing and extraterritorial. *Page 88