This is an appeal from a peremptory writ of prohibition issued by the circuit court of Beadle county, S. D., to the judge of the county court of said county and the sheriff of said county. A child, now known as Celeste Issenhuth, was born August, 1901, in Cleveland, Ohio. When six years old she was taken from her mother, Kate McGaugh, by the order of some court in Cleveland and placed in the St. Joseph’s Home for Children. In the month of August, 1909, the said child was adopted by John Issenhuth and wife, by proceedings had in the county court of Spink county, S'. D. In August, 1912, a proceeding entitled “State of South Dakota ex rel. Frank C. Kron-schnabel, Plaintiff, v. John Issenhuth and Celeste Issenhuth, Defendants,” was begun in the circuit court of Beadle county, S. D. It is claimed by the parties that this proceeding was had under chapter 28, Pol. Code. For anything that appears in the record it may have been brought under article 8, chap. 13, Probate Code. *533In this proceeding the trial court had granted a continuance over the October, 1912, term in order that the proceeding might be tried by jury. This court in mandamus proceedings decided (State ex rel., etc., v. Taylor, 30 S. D. 304, 138 N. W. 372) that Issenhuth, the defendant in the former proceedings, was not entitled to a trial by jury and required the circuit court to- proceed with the case. In such proceeding in this court, C. A. Kelley, the defendant herein, and now county judge of Beadle county, was one of the attorneys who, while nominally representing the trial judge, in reality represented Issenhuth, the defendant in the proceeding out of which the mandamus proceedings grew. Upon the trial of the proceeding against Issenhuth by the circuit court, an order dated December 20, 1912, was made, removing said child from the custody and control of her foster parent and surrendering her to the South Dakota Children’s Home Society. Said order further provided that, until the child should be received by said society, she should remain in the custody of Mrs. Huntley in the city of Huron, Beadle county, S. D. The child remained in such custody until February 12, 19x3. On that date an application was filed- in the county court of Beadle county, S. D., by John Issenhuth, for the return of the said -child to him, and on that date an order was issued by said county'court requiring •said Children’s Home Society to show cause why said child should not be returned to said applicant and directing the sheriff of said county to take immediate possession of said child. This order was served upon the agent of said society in charge of said child at Huron on that date as he and said child were about to take the train for said Children’s Home. On the next day an application was filed in said county court of Beadle county by Kate McGaugh, the mother- of said child, asking for the return of said child to her. Thereupon said county court issued a similar order to show cause which was likewise served. Thereupon said application -by John Issenhuth was withdrawn and dismissed. Pending the 'hearing on said second order to show cause, the circuit court of Beadle county on February 17, 1913, issued an alternative writ of prohibition to the judge of said county -court, which writ was made permanent by the said circuit court on February, 20, 19x3. It i's from this permanent or peremptory writ that this appeal is taken. The concluding portion of said per*534emptory writ is as follows: “Now therefore it is ordered that the said C. A. Kelley, as judge of the county court of Beadle county, S. D., aforesaid, be and he hereby is absolutely restrained and enjoined from continuing the said proceedings in said court or taking any further action therein except it be to dismiss the same, and it is also ordered that the said A. J. Larson, sheriff of Beadle county, S. D., now holding the custody of the child, Celeste Issenhuth, under and by virtue of certain orders made by this said county court in the above-mentioned proceeding, forthwith surrender and deliver the said child, Celeste Issenhuth, to the South Dakota Children's Home Society, the relator herein, to have and to do with said child according to law and in accordance with the order of this court heretofore made and entered herein on the 20th day of December, 1912, in the proceeding entitled in this court in the name of the ‘State of South Dakota ex rel. Frank C. Kronschnabel, Plaintiff, v. John Issenhuth and Celeste Issenhuth, Defendants’; and herein let the said defendants, and each of them fail not.”
[ 1 ] It is contended by appellants that the writ of prohibition did not lie: First, because relator did not make application for relief to the county court; second, because the county court had not rendered any decision in the matter before it; third, because relator had an adequate remedy at law; fourth, because the proceeding in the count)’ court was a proceeding in guardianship, and therefore the county court had jurisdiction to hear and determine the application; fifth, that the part of section 3205, Pol. Code, which gives authority to the circuit court violates the Constitution in that it infringes upon the jurisdiction of county courts; sixth, because the provisions in section 3206 and 3207 of the Political Code, which lodge in the board of managers of the Children’s Plome Society the power of passing on applications for the return of children from the home, violate the Constitution in that they purport to take away from the courts the power vested in them.
We are of the opinion that the first three grounds of contention must be decided adversely to appellants. These questions relate to practice, not to jurisdiction. They are matters that might be properly urged in the trial court. That court in its discretion held adversely to those contentions. We see no reason *535for holding that there was an abuse of such discretion; on the contrary, we- are convinced that there was no -such abuse. We are inclined to follow the rule laid down -by the California Supreme Court in the case of Havemeyer v. Superior Court, 84 Cal. 327, 24 Pac. 121, 10 L. R. A. 627, 18 Am. S't. Rep. 192: “Without going into the niceties of the subject, it may be said that the following propositions, applicable to this case, are fully supported by the decision in that case: — -(i) If a want of jurisdiction is apparent on the face of the proceeding, in the lower court, no plea or preliminary objection is necessary before suing out the writ of prohibition. (2) If the proceeding in the lower court is not on its face without the jurisdiction of such court, but is so in fact by reason of the existence of some matter not disclosed, such matter ought to be averred -in, some proper form, in order to make the want of jurisdiction appear. (3) But this is not essential to the jurisdiction of the superior court to grant prohibition. It is only lache's, which may or may not be excused, according -to circumstances. Accordingly, we find that frequently a failure to plead in the lower court was excused for the reason that it appeared that the plea would have been rejected if made. The whole question, in fact, was one of practice merely, not of jurisdiction; and the objection which most frequently prevailed to the granting of the writ was, 'not that the application came too early, but that it came too late.” In the present case, the application to the county court showed that the circuit court had previously entertained jurisdiction of the matter. Moreover, the judge of the county court joined in the return made to the alternative writ and thereby asserted his right to proceed with the case. In State ex rel. McEntee v. Bright, 224 Mo. 514, 123 S. W. 1057, 135 Am. St. Rep. 552, 20 Ann. Cas. 955, the court used these words peculiarly applicable to the facts in this case as such facts appear from the return made by the judge of the county court. “Neither do counsel * * * in this case make any suggestion that the court * * * would not have held on with a death grip to jurisdiction of the cause pending before that court. On the contrary, the judge of that court joins in the return made * * * affirming -his right to proceed with the case. Thus by the return it is shown that a challenge to the jurisdiction would have been unavailing.” See, also, State ex *536rel. McCaffery v. Aloe, 152 Mo. 466, 54 S. W. 494, 47 L. R. A. 393; Board of Education v. Holt, 51 W. Va. 435, 41 S. E. 337; Bice v. Boothville Tel. Co., 62 W. Va. 521, 59 S. E. 501, 125 Am. St. Rep. 986, 13 Ann. Cas. 1046.
This contention that the writ should not have issued until an application for relief had been made to the county court amply justifies this court in reviewing" the extraordinary situation presented by such return.- It justifies calling attention to the relation which the judge of the county court had borne to the previous legal proceedings out of which the one then before it seems to have grown. It justifies reference to a matter certainly novel in a court's return to a writ — we refer to the findings of fact contained in such return, being in effect findings of fact in a matter instituted in such court, which findings were rendered prior to the time when any issue of fact had- been raised, and which findings amount to a prejudgment on the merits of the cause before it. The -petition of Kate McGaugh, upon which she asked for the return of the child to her, admitted her unfitness to have the custody of such -child at -the time it was taken from her by the Ohio court; alleged the adoption of the child by Issenhuth; also set forth in detail facts showing changed conditions rendering her, as she claimed, a fit and proper person to -have the custody and care of such child. The petition recited the proceedings in the circuit court wherein the said child had been taken from its foster parent and committed to the care of the Children’s Home and alleged that it was about to be taken to such home; that after such child had been taken from Is-senhuth, in a crininal action against Is-senhuth, he had been found not guilty of the offense toward such child, for which offense petitioner claimed said child had been taken from Issenhuth by said circuit court. Said petition closed by -claiming" a right, by law, to ask for the return of such -child to her and prayed the county -court to direct such child to be returned to her. The petition -of John Issenhuth was in similar form, except that it contained matter tending to show his fitness to have the custody of the child and omitting those matters peculiar to the claim of Kate McGaugh. The return of the defendants to the alternative writ of prohibition recited, in substance, the petition of Kate McGaugh and amounted to a finding that all the facts set forth in said petition were true. Said re*537turn also contained findings that the conditions existing when the circuit court transferred the custody of the child from its foster parent to the Children’s Home Society were entirely changed; that the relations existing at the time of the petition in the circuit court -had “been entirely abrogated and nullified and the grounds upon which such petition was made no longer exist”; that the same evidence was submitted in the two proceedings (the one civil and the other criminal) in said circuit court; and that a jury, in the criminal cause, had found as a fact that the charges made and testified to upon which the said Hon. Alva E. Taylor made said order (in the civil proceedings) were not true in fact; that such jury had found Issenhuth innocent of the offense of which Judge Taylor had assumed him guilty when making the order depriving him of the custody of the child and placing her in such home; that there was additional evidence submitted in the criminal case not offered in the said civil proceeding, said evidence relating to lack of childish innocence on the part of the child, and to animosity and hatred of the complaining’ witness (who was also petitioner in the civil proceeding) against said Issenhuth.
The query naturally arises: How did the judge of the count}'- court judicially ascertain the truthfulness of .the facts set forth in Kate McGaugh’s petition, and in what manner were the additional facts found by him brought to his judicial attention in the proceeding brought in his court? The petition presented to the the circuit court upon which such court made its order removing the child in question from" the custody of its foster parent and committing it to the custody of the Children’s Home Society was before this court in the mandamus proceedings brought in tlii-s court and hereinbefore referred to. From such petition it appears that such foster parent was charged with many other acts of improper conduct toward such child besides that act of which he was acquitted in the criminal proceeding. How was the judge of the county court able to find that the circuit court assumed said foster parent guilty of the offense for which he was tried in the criminal action? How did he know that such circuit court did not find the foster parent guilty of the other misconduct charged against him, and did not assume him innocent of the charge of which the jury acquitted him? How can the judge of the county court say that, if the .issue of such foster parent’s guilt of this *538very charge had been submitted to him in the proceeding instituted in his court, he would not find — and, in justice, be bound to find from the fair preponderance of the evidence, .if not beyond a reasonable doubt — that he was guilty thereof? It is perfectly clear to us that it would have been useless for the Children's Home Society to have sought its rights before a court that had, without notice to, or any chance for a hearing by, such society, prejudged the alleged merits of the cause before it.
[2-4] We will next consider the remaining assignments together. Appellants further urge that the proceeding by which a child is committed to the Children’s Home is one substantially in the nature of a guardianship proceeding. With this we fully agree. It is their contention that the county court in no manner interfered with the action of the circuit court for the reason, as urged in their brief, that the circuit court had made its order appointing the guardian, which order had gone into full force and effect, and the child had been placed in the care of such guardian, to-wit, the Children’s Home Society, and that therefore the situation was the same legally as though such child had been in the Children’s Home for some time previous thereto. It is their further contention that the county court is given jurisdiction to terminate a guardianship relation when the conditions are such as to justify such termination, claiming that this power is given by an express provision of the statute. It will be noted that this provision, section 157, Civ. Code, is in connection with other provisions relating to power over and control of guardians. Section T.48, Civ. Code, gives to the court appointing exclusive jurisdiction to control. Section 159 uses the word "suspended” where clearly is meant “terminated,” and this statute shows clearly that “the court” mentioned therein must be the same court as “a court” mentioned therein. Furthermore, we apprehend that the right of the court to terminate a guardianship relation would be an inherent right vested in the court creating it, owing to the nature of this relation, and that no statute is needed to confer the authority to terminate the relation. Be that as it may, it -seems clear that what the statute contemplates is that the court which appointed the guardian may, under proper circumstances, terminate such guardianship relation. It seems inconceivable that it was intended to give to one -court the right to rescind or revoke *539the order of another court. If this can be done, then we have a situation wherein, if the county court of one county should appoint a guardian, upon the next day the county court of another county could revoke the order of the first court and appoint another, and then the first or some other court could the next day, set aside the proceeding of the second court; and so on without end. As we understand the guardianship proceeding, it is one' which is continuing in its nature, and when the jurisdiction legally vested in any court is exercised and such court reaches out and brings under such jurisdiction and into its control the proper parties, such parties remain under -its control and subject to its direction until the guardianship ends, and that there is no power in any other court to supervise or interfere with the proper exercise of such jurisdiction except upon appeal properly taken. We are frank to say that those sections of chapter 28, Pol. Code, which seem to give to the Children’s Plome Society plenary powers over children committed to it — thus apparently terminating the jurisdiction of the court and giving it no control over such guardian or power to protect the interests of the child — seem inconsistent with and in derogation of the power which should remain vested in the court. But even if these sections are unconstitutional, it only strengthens what we have said above and leads to this result: That, if the order appointing the Children’s Home Society as guardian of Celeste Issenhu-th was valid, then such order appointing the guardian stands unchallenged and could only be terminated by a proper application made in the court that granted the- order. It would therefore follow that, if the order of -the circuit court committing the child was valid, the application made to the county court failed to reveal facts sufficient to call into exercise any jurisdiction to remove a guardian, because such application revealed the fact that such guardian had been appointed by a court other than the one to which the application was addressed. The application conferred no jurisdiction upon the county court; the statute gave the county court no jurisdiction ; the record therefore shows ample grounds upon which a writ of prohibition might have issued; and, even if the grounds stated in the alternative and peremptory writs were not in them-, selves sufficient, yet, in analogy to well-established rules recognized upon appeals in ordinary cases, this court will not disturb or re*540verse the rightful judgment of the trial court, though such judgment may have been by such trial court based upon insufficient grounds.
[5] For the sake of the argument, let us concede that the county court of Beadle county is given jurisdiction to remove guardians appointed -by some other court, and that therefore it could remove this guardian even though its appointment were valid. In what manner shall this proceeding for removal be instituted, and who are to be made parties thereto ? The proceeding instituted by Issenhuth was dismissed. Kate McGaugh had ceased to have any rights as parent, having lost same upon the adoption of the child by Issenhuth, who still remains the father of this child regardless of the fact of its being placed in the Children’s Home, and will remain such father until the death of the child or its legal adoption by some other person. It follows that Kate McGaugh could, not invoke the jurisdiction of the county court under any right given the parent by chapter 28, Pol. Code.
[6] Again, let us suppose that the circuit court was without jurisdiction to take the child and commit it to the care of the Children’s Plome. Then when the county court assume'd jurisdiction over this child the situation was exactly as though there had been no proceeding in the circuit court whatsoever and this child stood as the legally adopted child of John Issenhuth with full right and power upon his part to the custody and control of same. We know of no statute giving any right, other than by proceedings based upon a charge that the parent, Issenhuth, was a person unfit to have its care, to have the child taken from Issenhuth and given into the custody of some other party. And furthermore, as above noted, the application of Kate Mc-Gaugh, showing that she was not the legal parent of such child— thus showing that she had no greater legal rights than any stranger to the child, and also setting forth allegations which would show that Issenhuth was a proper person to have the care of such child — wholly failed to present any matter sufficient to. call into exercise' any jurisdiction given the county court.
The fact is that the county court assumed jurisdiction under rhe theory that the child had been legally committed to the guardianship of the home, and that it had the power to terminate *541such guardianship. This is the only theory upon which it can base any claim to jurisdiction. The judgment order should be sustained, not merely because the county court and sheriff were wrongfully interfering with the orderly enforcement of the orders of the circuit court, but 'upon the broad proposition that, entirely regardless of the former proceedings in the circuit court, and, even if there had been no previous proceedings in such court, the proceedings brought in the county court were entirely without authority of law .and attempted to invoke an unauthorized exercise of jurisdiction, and, in acting therein, the county court acted without any jurisdiction.
[7] We decline to pass upon the question whether that part of section 3205, Pol. Code, which gives authority to the circuir court in the first instance, infringes upon the jurisdiction of county courts, and we also decline to pass upon the question as to whether chapter 298 of the Taws of 1909 took away such jurisdiction from the circuit court. Neither question is necessary to a determination of this case. These questions cannot be raised by an attempted appeal from the circuit court to the county court.
The peremptory writ of prohibition is affirmed.