The opinion in this case announces a rule entirely at variance with all of our decisions relative to appellate procedure. In the first place, the majority opinion, as I understand it, means to hold that this court does not have jurisdiction relative to the custody of children pending an appeal in a divorce case. However, the opinion states:
"The respondent has the right to have the custody of the child as provided in the court's interlocutory order pending the appeal, and a defense on the merits will not lie to an appropriate procedure to enforce the order."
How can this court determine the question of custody, as it has, without first having secured jurisdiction? There are no cases in any of the law books in this, or any other state, which so hold.
The majority cite the case of Helard v. Helard, 22 Wash. 2d 950, 155 P.2d 499, and make certain statements relative to that case which are not contained in the opinion. The case as reported, reads as follows:
"This matter having come on regularly to be heard before the court sitting En Banc on the 9th day of November, 1944, on the motion of respondent to dismiss the appeal herein taken by Margaret Helard, and the court having heard and considered the matter and having thereafter entered an order filed herein November 29, 1944 (which order is hereby referred to as pertaining to the substance of this order); and it further appearing that by the order above mentioned the appellant, Margaret Helard was ordered to return to the state of Washington and to the jurisdiction of the superior court for Kitsap county on or before the 3d day of January, 1945, the minor children of herself and respondent, Louie Helard, and that it was further provided *Page 399 by the order that, if the children of the parties to this action should not be so returned to the jurisdiction referred to on or before January 3, 1945, appellant's appeal to this court then here pending would be dismissed;
"And the above-entitled action having come on again regularly to be heard before this court sitting En Banc on the 4th day of January, 1945, and it then appearing that the minor children of the above-named parties to this action have not been returned to the jurisdiction of the superior court of the state of Washington for Kitsap county on or prior to January 3, 1945, or at all, and the matter having been on the 4th day of January, 1945, by this court taken under advisement;
"NOW, THEREFORE, IT IS BY THE COURT ORDERED that the appeal of Margaret Helard in the above-entitled matter be and the same is hereby dismissed.
"Dated this 5th day of February, 1945."
The only reference to the Helard case in Pike v. Pike,24 Wash. 2d 735, 167 P.2d 401, is contained in the following quotation:
"However, we are not disposed to dismiss this appeal at the present time, but prefer to follow the usual practice in such cases, as indicated in Helard v. Helard, 22 Wash. 2d 950,155 P.2d 499, by making an order dismissing the appeal, to take effect on a certain day, unless in the meantime the appellant complies with the interlocutory order made by the trial court. In conformity with such practice, the appeal in this case will be dismissed within ten days after the effective date of filing this opinion, unless before that time appellant returns the children to their father in accordance with the interlocutory order."
Art. IV, § 4, of the constitution of the state of Washington confers appellate jurisdiction on the supreme court.
Rem. Rev. Stat., § 996 [P.P.C. § 23-41] (formerly Rem. Bal. Code, § 996), provides:
"In all instances where the superior court shall grant a divorce, it shall be for cause distinctly stated in the complaint, and proved, and found by the court, and the court shall state the facts found upon which the decree is rendered; and when either party shall signify a desire to appeal from any of the orders of the court, in the disposition of the property or of the children, the court shall certify the evidence adduced on the trial, and the supreme court shall be *Page 400 possessed of the whole case as fully as the superior court was, and may reverse, modify, or affirm said judgment, according to the real merits of the case."
This section of the code has been held to be a special statute applicable in divorce cases.
In Holcomb v. Holcomb, 49 Wash. 498, 95 P. 1091, this court had before it an application for temporary alimony, attorney's fees, and suit money, pending an appeal from a judgment of divorce. The application also contained a request for a writ neexeat, restraining and prohibiting the defendant from leaving the state of Washington. In passing, the court referred to Bal. Code, §§ 5722, 5723, which, with some exceptions not necessary to be considered in this case, are the same as Rem. Rev. Stat., §§ 988, 989 [P.P.C. §§ 23-15, -23]. These sections of the code give to the superior court the power to make interlocutory orders concerning the disposition of the persons, property, and children of the parties; also, to make disposition of the property belonging to the litigants. In passing upon the sections of the statute to which I have just referred, this court stated:
"Under § 5723 it is conceded that the trial court has power in all proper cases to allow alimony, suit money, and attorney's fees pending the litigation in that court. That portion of § 5730 which says, `and the supreme court shall be possessed of the whole case as fully as the superior court was,' would seem to imply that the appellate court should, upon the appeal, be vested with every power concerning the parties and the property which was possessed by the trial court during the pendency of the case in that court.
"But it is suggested that, under the state constitution, such power is not vested in this court. Where the parties by their pleadings bring before the trial court their property, that court is by § 5722 given express authority to dispose of it during the pendency of the action `as may be deemed right and proper.' Hence, during that time, the property is practically in custodialegis. Section 5723 requires the court, upon granting a divorce, to dispose of the property `as shall appear just and equitable.' If an appeal is taken and the decree superseded, where is the control of the property then vested? It could not go absolutely to the *Page 401 appellant, but would be there subject to just such limitations as existed immediately before the decree was entered. That would be the natural effect of the stay bond. It would seem that the power over the property, given by § 5722, would then pass to the appellate court, and should be exercised by that court as an incident to its appellate jurisdiction, essential to the administration of justice in such cases, although possibly it might also be exercised by the trial court in providing for the maintenance of the wife and for the preparation and presentation of her case on appeal; a question, however, that we do not now decide. We think it may be deemed such an incident to the exercise of the appellate and revisory jurisdiction of this court in a case like this at bar, for two reasons: (1) because the state is an interested party in every divorce case, and public policy forbids that the issues in such a case should be adjudicated when the wife, by reason of the withholding of her property by the husband, is unable to appear or be heard concerning the rights of herself and minor children; (2) because she, being a joint owner in the property which by §§ 5722 and 5723 is made subject to the control pendente lite and to the disposition finally of the court, is entitled, both as a matter of right and public policy, to such an allowance from the property as will sustain her during the litigation and enable her to be heard before both the trial and appellate courts as to her claims and rights involved in the litigation.
"A divorce case is tried in this court de novo upon the record and evidence brought from the trial court. In theconsideration and determination of the case, we must consider notonly the interests of the husband and wife, but also theinterests of the state and society generally and of the minorchildren of the parties. [Italics mine.] The peculiar character of a divorce proceeding is such that both justice and public policy demand an opportunity for the wife to be present or heard before her property and other rights are passed upon by the appellate court. The law cannot consistently say to her: `You must support yourself during this litigation and defend the interest of yourself, children, and the state, appear on this appeal and pay all expenses for preparing and presenting your case,' and then add: `But you will not be allowed any of your money or other property, tied up herein, with which to meet such demands, even though your inability to appear results disastrously to the interests of yourself, your infant child, *Page 402 and the state.' We do not think our constitution and statutes demand a construction producing such an incongruity. To say that the law requires the wife to do something which the law makes it impossible for her to do, is to assert a proposition to which we cannot accord legal sanction. We think this court has the power to exercise its jurisdiction so as not to give recognition to such a doctrine. Where, as in this case, there is a considerable amount of community property involved, all of which is tied up by a stay bond on appeal, we think this court has the power, incidental to its appellate jurisdiction, to award from such property a sufficient amount to support the wife and minor child and to properly present her case herein. We think such power is contemplated in § 4 of art. 4, of the State Constitution, where it says: `The supreme court shall also have the power to issue .. . all other writs necessary and proper to the complete exercise of its appellate and revisory jurisdiction.'"
In State ex rel. Gibson v. Superior Court, 69 Wash. 280,124 P. 686, this court held, upon appeal from judgment of divorce disposing of the property rights of the parties, that the superior court lost all jurisdiction, and could not issue a writ of garnishment to enforce the judgment for costs and attorney's fees against the husband, although he failed to file any supersedeas bond on his appeal. In passing, the court stated:
"It is thus apparent that, before the garnishment proceedings were instituted, the principal action and every part thereof had been appealed to this court. The relator contends that this transferred the entire action to this court, and deprived the lower court of jurisdiction thereof for any purpose, and that the garnishment proceeding, being in its nature ancillary to the principal action, the trial court had no jurisdiction to entertain it. This contention must be sustained. The statute (Rem. Bal. Code, § 988), confers upon the trial court or judge thereof in divorce proceedings power pending the action to make and enforce `such orders for the disposition of the persons, property and children of the parties as may be deemed right and proper.' The statute further provides (Rem. Bal. Code, § 989), that, `in granting a divorce, the court shall also make such disposition of the property of the parties as shall appear just and equitable,' etc." *Page 403
Then, after quoting Rem. Bal. Code, § 996, the court said:
"We can conceive of no plainer terms to express the intention that upon the appeal the supreme court acquires jurisdiction of the whole case and for every purpose. Holcomb v. Holcomb,49 Wash. 498, 95 P. 1091. It follows that the trial court by the appeal loses jurisdiction for any purpose.
"`Garnishment proceedings, being purely ancillary to the suit against the principal defendant, depend upon it for their existence and validity. If, for any reason, the court fails to get jurisdiction of the principal suit, the garnishment must inevitably fall with it. This principle is universal.' Rood, Garnishment, § 224.
"The garnishment proceeding being ancillary to the principal action, of which the trial court had lost jurisdiction by the appeal, it follows that the trial court had no jurisdiction to entertain it. The garnishment proceedings were, therefore, void from the beginning.
"It is argued that, inasmuch as Stephen A. Gibson failed to file his supersedeas bond on his cross-appeal in the consolidated actions until after the sale in the garnishment proceeding, the lower court still had jurisdiction to enforce the judgment for costs and attorney's fees. But it will be noted that § 996 above quoted does not make the transfer of the case appealed, or any part thereof, dependent upon the filing of a supersedeas bond. It expressly declares that, upon the appeal, `the supreme court shall be possessed of the whole case as fully as the superior court was.'"
In speaking of Rem. Bal. Code, § 996, Judge Main, in the case of Masterson v. Ogden, 78 Wash. 644, 139 P. 654, Ann. Cas. 1914D, 885, stated:
"The appellants' brief discloses a painstaking investigation into the respective effects of appeals and writs of error at common law. It is unnecessary to follow this discussion, for the reason that appellate procedure in this state is defined by the statutes. Neither does the general statute governing appeals aid in determining the question, for there is a special statute made applicable to appeals in divorce cases. Rem. Bal. Code, § 996 (P.C. 155 § 23), which governs appeals in divorce cases, provides, among other things, that when an appeal is taken, `the supreme court shall be possessed of the whole case as fully as the *Page 404 superior court was, and may reverse, modify, or affirm said judgment, according to the real merits of the case.'"
From a study of the statutes and the cases to which I have just referred, it seems crystal clear that this court assumes entire jurisdiction after an appeal has been perfected in a divorce action. The wording of the statute is plain. There is no room for construction. It simply says that the supreme court shall be as fully possessed of the case as the superior court was. The three cases just cited bear out the conclusion I have reached.
I shall now call attention to other cases decided by this court which laid down the rule that the superior court loses all jurisdiction in a divorce proceeding, or any other kind of case, as soon as notice of appeal has been given.
In State ex rel. Mullen v. Superior Court, 15 Wash. 376,46 P. 402, an individual obtained a judgment in his favor in aquo warranto proceeding to test the title to an office. The defendant appealed, and then sought an order in the superior court requiring the relator to surrender possession of the office. A proceeding was then instituted in the supreme court to prohibit the superior court from proceeding. It was held that, when the appeal was perfected, the superior court had no jurisdiction to take any action in the proceeding except those specially provided for in the act relating to appeals.
In Irving v. Irving, 26 Wash. 122, 66 P. 123, disposition was made of a child in a divorce action. Thereafter, one of the parties to the action petitioned the superior court to change the custody of the child. The trial court granted the petition, and an appeal was taken from that order. In passing upon the question, this court stated:
"The statute also provides (§ 6515, Bal. Code) that upon the taking of an appeal by notice, and the filing of a bond to render the appeal effectual, the supreme court acquires jurisdiction for all necessary purposes, and has control of the superior court and all inferior officers in all matters pertaining thereto. The subject-matter of controversy in both these petitions was the right to the custody of the minor child. When, therefore, the final judgment was *Page 405 entered in the superior court, and an appeal therefrom was taken to this court, jurisdiction over the subject-matter of the controversy was taken from the superior court and vested here, and this court alone had power, during the pendency of such appeal, to make orders with relation thereto."
The case of Aetna Ins. Co. v. Thompson, 34 Wash. 610,76 P. 105, has to do with the jurisdiction of the supreme court after an appeal has been taken. In that case, it was held that, after an appeal was perfected, the jurisdiction of the trial court was at an end, and it had no power to interfere with the jurisdiction of the supreme court, or with the judgment of its own court.
A portion of the holding in the case last cited was criticized in Stone-Easter v. Seattle, 121 Wash. 520, 209 P. 687, 215 P. 56. However, the criticism was not directed to the portion of the case just referred to.
State ex rel. Davenport v. Poindexter, 45 Wash. 37,87 P. 1069, is another case which has to do with jurisdiction after an appeal has been taken. The case resulted from an application for writ of habeas corpus. The facts were that relators were awarded the custody of children by virtue of adoption proceedings which were claimed to have been fraudulent and invalid. The mother of the children had instituted a habeas corpus proceeding in the superior court to recover possession of her children. During the hearing, the trial court directed that the minors should remain in the custody of the matron of the juvenile department of the court, and were in such custody at the time the court rendered its judgment giving the children to their mother. Appeal was then taken to this court and a supersedeas bond filed. Thereafter, the relators made a motion for the delivery of the children to them upon the ground that they had filed a supersedeas bond in the amount fixed by the court. The motion was denied by the trial court. In passing, we held as follows:
"In such a proceeding as this, we do not think the giving of a supersedeas bond has any effect whatever upon the possession, custody and control of the minor children in *Page 406 question. It being presumed that the order of the trial judge was correct, and that he was actuated by a consideration for the minors' welfare, it would be against public policy to have that welfare imperiled during an appeal, in the absence of a statute clearly permitting the staying of such orders. The trial court had jurisdiction to take said children into its possession, if it believed that their physical or moral welfare or other substantial interests necessitated such action. When the appeal was perfected, this court became invested with jurisdiction to make such orders as the welfare and necessities of said minors might demand. If, as contended by relator, the present situation of these minors is so unsuitable as to menace their physical or moral welfare or other substantial interests, the question of an appropriate change could doubtless be considered by this court upon a proper showing."
In Gust v. Gust, 71 Wash. 75, 127 P. 566, it was held that, when an appeal was taken in a divorce action, the whole cause was brought to the supreme court, and that the superior court had jurisdiction only to perfect the appeal. In passing, it was stated:
"In virtue of the statute, actions for divorce, whether granted or denied in the court below, are tried de novo in this court on appeal of the unsuccessful party. An appeal, therefore, duly perfected, brings the whole case to this court for review, and deprives the trial court of jurisdiction to take any further action in the proceeding, except such as may be specially provided for in the act relating to appeals. Rem. Bal. Code, § 1731. The modification of the judgment here complained of was not such an action as the statute authorizes. It virtually changed the rights of the parties to the judgment, and was, in effect, the entry of a new judgment, while the statute authorizes only such further action on the part of the trial court after an appeal has been taken as may be necessary to perfect the record in this court."
State ex rel. Wilkerson v. Superior Court, 108 Wash. 15,183 P. 63, is another case which has to do with jurisdiction of this court in divorce appeals. It appeared in that case that a divorce decree was entered, awarding custody of the minor daughter to her mother, and the custody of two minor boys to their father. Later, the mother filed a petition *Page 407 asking to have the decree modified so as to award her the custody of all three children, who were then in her care and control. Upon a hearing, the decree was modified so as to award to the mother the custody of the oldest boy and the girl, and to award to the husband the custody of the other boy. She then appealed. Thereafter, the father sued out a writ of habeas corpus for the purpose of securing possession of the boy whose custody had been awarded to him by the original decree and denied to him in the last action. Upon the return of the writ, the mother filed a plea in abatement upon the ground that the appeal had been perfected in the divorce action. The plea was denied by the trial court, and thereupon application was made to prohibit the court from entering an order in the habeas corpus proceeding, transferring possession of the boy to his father. In passing upon this question, the court stated:
"This court has early decided, and consistently followed that decision, that, upon an appeal being taken from an order modifying a divorce decree, the fact of such appeal may be set up by plea in abatement in defense to a subsequent action by either of the parties seeking to have the custody of the children changed during the pendency of such appeal; that the supreme court, after the appeal has been taken, possesses the sole power to make orders with reference to the custody of the children, and that all applications for such change must be addressed to this court. Irving v. Irving, 26 Wash. 122, 66 P. 123; Gust v.Gust, 71 Wash. 75, 127 P. 566."
In Phillips v. Wenatchee Valley Fruit Exchange, 124 Wash. 425,214 P. 837, this court laid down the rule that, after an appeal has been taken in an equitable case, the trial court is without jurisdiction to make a supplemental order or decree.
In Isom v. Olympia Oil Wood Products Co., 200 Wash. 642,94 P.2d 482, it was held that the trial court had no power to change the date of the filing of the notice of appeal, or the bond given on appeal.
In State ex rel. Department of Public Service v. Wilson,12 Wash. 2d 614, 123 P.2d 341, it was held that, after an appeal had been perfected, the superior court had no jurisdiction *Page 408 to take any action in the proceedings except those necessary, or specifically provided by statute, for making the appeal effective.
In Penchos v. Ranta, 22 Wash. 2d 198, 155 P.2d 277, we held that, after an appeal had been perfected, the trial court was without jurisdiction to change the record by a nunc protunc order altering certain dates in the findings of fact as already made by the trial court. This holding was based on theKawabe, Isom, and Wilson cases.
In Nash v. Nash, 23 Wash. 2d 448, 161 P.2d 326, it was held that, after an appeal had been perfected, the trial court was without authority to change the actual filing date of the statement of facts by a nunc pro tunc order.
In Pike v. Pike, 24 Wash. 2d 735, 167 P.2d 401, this court considered a case where a motion had been made to dismiss an appeal by reason of the fact that one of the parties had removed the children, who had been awarded to the other parent, and concealed them so that the order of the trial court was prevented from becoming effective. Among other things, the appellant contended that the supreme court had only appellate jurisdiction, and could not pass upon motions relative to the enforcement of the judgment rendered in the superior court. In passing upon this question, we held that, after appeal had been perfected, the trial court lost all jurisdiction of the matters concerned in the case except those provided for in the law relating to appeals, and cited many of the cases to which I have referred. The court then stated:
"It is our conclusion that the superior court lost jurisdiction in this case at the time appeal was perfected, and that the power to determine any matters connected with the case was immediately transferred to this court."
The decision of the majority in this case will result in a state of utter confusion regarding the jurisdiction of courts when appeal has been taken. As I understand the majority opinion, this court is without jurisdiction to enforce the judgment after appeal has been taken, but that the superior court retains jurisdiction to enforce its decree, subsequent *Page 409 to the taking of an appeal. On the other hand, the majority opinion concludes that the trial court cannot change or modify its judgment subsequent to the taking of an appeal.
The unanswered question is: Does the supreme court have the jurisdiction to change or modify temporary judgments of the trial court during the time an appeal is being considered?
The rule laid down by the majority opinion will result in the denial of the right of review to many people. Let us assume (and the assumption is reasonable because the same situation has been present in the past, and undoubtedly will be in the future) that "A" secures a decree of divorce from "B," and the custody of the minor children, with permission to take them out of the state of Washington, beyond the jurisdiction of the courts of this state. Under the situation just spoken of, "B" will have no recourse whatever if "A" desires to take the children out of the state before the case is decided in this court. The trial court cannot change or modify its decree, and this court will be unable, because of lack of jurisdiction, to modify the decree of the trial court so as to keep the children within the jurisdiction of the courts of this state, pending appeal.
An appeal is a right guaranteed by the constitution, and should not be taken away from those who desire to take advantage of the right. I realize, of course, that the right to appeal remains, but it would be of no effect, because even if the judgment should be reversed, it would be ineffectual.
We should hold, in line with our various decisions, and in conformity with the provisions of the statute, that, when an appeal is taken in a divorce case, this court assumes jurisdiction for every purpose.