(dissenting). — We do not concur in the opinion of the learned chief justice to the effect that' the supreme court cannot properly entertain the present proceeding.
1. The fact that the child is not within the state does not of itself prevent the court frpm adjudicating its custody. The father has been personally served with the writ within the local jurisdiction. He has control of the body of the child. Its detention or restraint (referred to in the habeas corpus act) is hence committed “within this state,” where the person is found who so detains or restrains it, though the child may be outside the territorial limits of the state at present.
It is unnecessary to enlarge upon this point, for there is no difference in the court concerning it. Rivers v. Mitchell (1881), 57 Iowa, 193; Reg. v. Barnardo (1889), 23 Q. B. D. 305.
2. It is next claimed that the supreme court cannot properly act because the circuit court in the divorce suit has jurisdiction to dispose of the custody of the child, as explained in the prevailing opinion here.
By the statute defining the power of the trial court and regulating the procedure in civil actions for divorce (R. S., 1889, sec. 4505), “the care, custody and maintenance of the children or any of them,” as well as the matter of alimony of the wife, may be the subjects of orders, when the divorce “'shall be adjudged;” and the court is further authorized to *258“decree alimony pending 'the suit for divorce in all cases where the same would be just,” etc. But no such power to dispose of the custody of children before the decree, pending the suit, is conferred.
If the statute were entirely silent on the subject of the court’s power during the early stages of the action, the case at bar would bear a more favorable aspect for defendánt than it now presents. But where the law expressly grants authority to act provisionally on the subject of alimony, and in the same section declares that the custody of the children may be dealt with by the final adjudication of divorce, we are confronted with a very plain exhibition of legislative intent.
Whatever may be the origin of the jurisdiction in suits of divorce (as to which it seems unnecessary now to inquire), we are firmly of the opinion that in so far as the statute law defines and regulates the exercise of the jurisdiction, that law must be observed and followed. Stokes v. Stokes (1823), 1 Mo. 320; Doyle v. Doyle (1858), 26 Mo. 545. Where power is granted to deal with two subjects, alimony and custody of children, by final decree, and in the same connection it is declared that one of those subjects, alimony, may be acted upon pending the suit, it must certainly be held that the power to deal with the other subject prior to an adjudication of divorce, was not designed by the statute to be conferred.
The expression of the subject of alimony evidently amounts to an exclusion of the other topic of the custody of the children, with reference to the exercise of jurisdiction by the court during the pendency of the suit and before the decree. We consider the terms of the section in question as calling for the application of the useful rule of statutory interpretation, that the express mention of one thing implies the exclusion of *259another (Broom’s Leg. Max. (1882) [8 Am. Ed.] p. 651), in order that the intent, obviously embodied in the legislative language, may be given effect.
If these positions are correct, it follows that the circuit court cannot at the present time, in the divorce case, determine the proper custody of the child; hence, its jurisdiction of that subject cannot be rightly regarded, from any point of view, as concurrent with the jurisdiction of the supreme court upon 'the writ of habeas corpus.
3. But, assuming for the moment that the circuit court has power, during the divorce suit, to act upon the subject-matter of the custody of the child, does that fact warrant a denial of the writ because of any principle of law governing the action of courts of co-ordinate jurisdiction?
The power of a circuit court in respect of the custody of a child, in a suit to which only the parents are parties, cannot rightly be considered co-ordinate with that of the supreme court on this extraordinary writ. The latter jurisdiction is different in nature from the former, and is far more comprehensive. It is a superior, original, summary and supervisory jurisdiction, conferred by the constitution. Moreover, it extends to such disposition of the child as the court may consider the welfare of the former demands. Revised Statutes, 1889, sec. 5415. The court on this writ may pass by both parents and award the custody to a third person, unconnected with the proceeding. It is not limited to a consideration of the equities of the parents as parties litigant in a suit between them.
But, further, even if the two jurisdictions be regarded as co-ordinate, that of the circuit court has not yet been invoked. Neither party in the divorce suit has therein asked for the custody of the child, nor has the court in any manner acted in regard thereto. *260The jurisdiction of the circuit court to determine the-custody may, indeed, exist, but, not having been called into play by anyone, it should not be considered to stand in the way of action by another court having authority over that particular subject, when properly appealed to.
As was remarked by the supreme court of the United States in a leading precedent on this branch of the law,'where “the relief sought is different, and the mode of proceeding is different, the jurisdiction of neither court is affected by the proceeding -in the other.” Buck v. Colbath (1865), 3 Wall. 334. For stronger reason does that ruling apply when the objection to action by the supreme court of the state on habeas corpus is that the circuit court may, if hereafter .requested, determine the subject of the custody of the child, as between its parents, though as yet neither of them, by the pleadings or otherwise, has called upon that court to take any, action whatever thereon.
It seems to us, with due respect, a novel idea that this court should abrogate its power to administer justice on a particular topic because some other court (assuming it to have like power in the premises) may possibly in the future conclude to move in the matter, though it has not yet been called upon, or seen fit to do so. We conclude that it is the duty of this court to entertain and pass upon the merits of the present proceeding.
Hence this dissent to the ruling of our learned bréthren to the contrary.
Shebwood, J., joins in this opinion.