DISSENTING OPINION OF
PETERS, C. J.I respectfully dissent. In my opinion the provisions of section 2510, R. L. 1915, providing that an appeal duly perfected operates as an arrest of judgment and stay of execution need be considered only so far as respondents’ general appeal affected the ancillary order of temporary custody included in the final judgment. If the circuit judge had jurisdiction to make such an order and it was not arrested by respondents’ appeal then the circuit judge cannot be prohibited from taking cognizance of its disobedience and proceeding accordingly. Whether the respondents were also guilty of disobeying the main portion of the judgment which was responsive to the writ, and whether an appeal duly perfected arrested the main portion of the judgment are beside the question. If the circuit judge had jurisdiction in the contempt proceedings for any purpose prohibition does not lie and the writ should be dismissed.
The circuit judge clearly had jurisdiction to punish the respondents for their disobedience of the order of temporary custody Avhile the cause was pending before him and prior to the perfection of the appeal by the respondents. If, as the majority hold, an appeal duly perfected to the supreme court from the judgment of the circuit judge at chambers awarding custody of an infant to the petitioner in 7habeas corpus proceedings operates under the *707provision of section 2510, R. L. 1915, as an arrest of judgment and stay of execution then tbe word “judgment” as employed in section 2744, R. L. 1915, means “final judgment” similarly as tlie word “discharge” in section 2749, R. L. 1915, means “final discharge” (so held in Ex parte Ah Oi, 13 Haw. 534), and the circuit court, until the cause is removed hy appeal, and thereafter this court on appeal and until “final judgment” have authority to make ancillary orders of temporary custody. Such authority was exercised hy this court in Re Atcherley, 9 Haw. 346, upon appeal from the judgment of a circuit judge at chambers discharging the petitioner upon habeas corpus proceedings. If this authority may be exercised in this court on appeal after the judgment of the circuit judge I see no good reason for denying its exercise hy the circuit judge upon the entry of judgment in anticipation of and pending the perfection of the appeal to this court hy the party aggrieved hy the judgment. Otherwise an hiatus would occur between the judgment and the perfection of an appeal during which neither the circuit judge nor this court could make any ancillary order of temporary custody and thereby and until “final judgment” give relief from the conditions which the habeas corpus proceedings were sought to correct. Moreover an appeal duly perfected does not abrogate or supersede such order of temporary custody. It continues in force after removal on appeal and until the. same authority granted hy section 2744, R. L. 1915, is invoked in and exercised hy this court.
Nor was the ancillary order of temporary custody contained in the judgment of the circuit judge subject to appeal. At and prior to the entry of judgment in the circuit court the possession by the respondents of the infant subject to- the proceedings was solely by reason of the order of temporary custody made by the judge upon the return to the writ. Theirs was simply the physical *708custody of tbe child. Its possession was in the judge issuing the writ. The custody of the respondents was subject to the supervisory control, modification or change of the judge. That the judge transferred the possession of the infant to its mother is immaterial. If he had authority to make the order the possession of the child could have been transferred to a third party. That matter lay entirely in the judicial discretion of the judge. The respondents had no interest in the change of temporary custody entitling them to an appeal from that portion of the judgment in respect thereto. To the temporary change of possession the respondents as the representatives of the court could not complain. They had no such interest entitling them to an appeal. Their only interest lay in such ultimate award as the court might make after its determination that the retention of the child by the respondents was illegal.
The writ of prohibition should be dismissed.