dissenting:
I respectfully dissent from the decision of this Court by which petitioner is denied custody of the infant child in the proceeding in habeas corpus ad subjiciendum, and the writ was discharged. I agree with the decision to deny the writ of prohibition. It must be remembered that these are separate original proceedings, though properly consolidated for the purpose of stating the reasons for the Court’s decision in each in one opinion.
After carefully refuting all of the reasons advanced by the Millers as to why petitioner is not entitled to the lawful custody of the infant in the habeas corpus proceeding, and affirmatively stating in the opinion that: “* * * the petitioner has, according to the record as it now stands, shown' its legal rights under the Foster Parents Agreement, * * citing State Department of Public Assistance v. Pettrey, 141 W. Va. 719, 92 S. E. 2d. 917, which is directly in point and controlling as to the *864primary issue presented the Court, concludes that: “* * * to grant the writ of habeas corpus and to deny the writ of prohibition would be inconsistent and productive of possible serious consequences * * Why such dire consequences would result is not stated, nor is any reason given or authority cited for the necessary conclusion that this Court has been deprived of its constitutional original jurisdiction in habeas corpus by the injunction suit in the Circuit Court of Wyoming County. That habeas corpus is a proper remedy at law to determine custody of an infant, see Pugh v. Pugh, 138 W. Va. 501, 56 S. E. 2d. 901, 15 A.L.R. 2d. 424; Green v. Campbell, 35 W. Va. 698, 14 S. E. 212; Rust v. Vanvacter, 9 W. Va. 600. This is not a suit to determine custody of the infant child. It was a pure bill of injunction to prevent the petitioner in these proceedings from removing the child from the Miller home until its physical condition had improved. While a copy of the original bill is not a part of the record in these proceedings, it is clear from the answer of the able Judge of the Circuit Court of Wyoming County what relief plaintiff sought in that suit. Therein he stated that an employee of the Child Welfare Division of the Department of Public Assistance “notified the Millers that she would be there in a few days to take the child to its adoptive parents, that at that time the child had not been out of the house from the date of its return from the hospital, and the weather was cold with a considerable amount of precipitation, and that the climatic conditions made it not only unwise but foolish to think of moving this child the great distance involved under these circumstances.” He further stated in his answer: “* * * Under these circumstances it was felt that the only reasonable action to take would be to stay or to maintain the status quo until the health of the child improved to the extent that it could be safely moved. The Court also entertained the view that after 14 months of delay in finding a home that an additional 60-day period would not cause any undue hardship on the part of anybody until the stability of the health of the child was secured. For *865that reason and that reason alone the injunction was awarded.” (Italics supplied.) Furthermore, there is attached to the answer of the respondents in the habeas corpus proceeding, as an exhibit, a duly certified copy of the decree, the last paragraph of which provides: “Upon consideration of said bill and its exhibits, the evidence and argument of counsel, the undersigned Judge is of the opinion to and doth hereby award an injunction as prayed for in said bill for a period of sixty (60) days from the date of the entry of this decree.” Exhibit No. 3 to the Miller respondents’ answer in the prohibition proceeding is a copy of the order entered by Judge Worrell on July 30, 1956, awarding custody of the infant child to the petitioner. It contains this paragraph: “IT IS THEREFORE ORDERED that the said Karen Dawn Underwood be, and she hereby is, adjudged a dependent and neglected child and she hereby is comitted to the permanent care, custody and guardianship of the said Department of Public Assistance, Division of Child Welfare, and that the parental rights and responsibilities to and for the said child are hereby terminated; that the said Department is authorized to hold, keep, care for, train and educate her according to the rules and regulations governing the said Division, with the power to consent to his adoption, and to do for the said child all things beneficial to his welfare.” By this order and the formal instrument executed by the mother relinquishing her parental rights, the petitioner secured full custody of the child. The only relief sought by the plaintiffs in the suit brought in the Circuit Court of Wyoming County was an injunction restraining the petitioner from removing the child from their home to the home of the persons who would at the proper time and in a proper court seek to adopt the infant because the child was temporarily indisposed. While it is generally true that where a court of equity has once obtained jurisdiction of a cause, it will retain it for all purposes and administer complete relief, Payne v. Fitzwater, 103 W. Va. 12, 136 S. E. 509; Koen v. Koen, 86 W. Va. 503, 103 S. E. 322, Judge Worrell, in granting a temp*866orary injunction restraining the removal of the child for a period of sixty days because of its physical condition, did not attempt to, nor could he in such suit, permanently deprive the petitioner of the right to the lawful custody of the child. “* * * If the plaintiffs desire any relief proper to be given in the case as made, other than that specifically prayed for, the bill must contain a prayer for general relief, * * Syl., Pt. 1, McCrum v. Lee, 38 W. Va. 583, 18 S. E. 757. As heretofore stated, the original bill for injunction was not made a part of the record in these proceedings, but there is no contention in the answers, briefs, or arguments that there was “any relief proper to be given” in that suit except to temporarily restrain petitioner from removing the child from the Miller home pending its convalescence from a recent illness.
The sixty days have long since passed, as has the foul March weather. It is extremely unlikely that the child’s temperature has not returned to normal, or that its convalescence is not complete. Nevertheless, if the peremptory writ was awarded directing the Millers to deliver custody of the child to the petitioner, and the physical condition of the child continued to be such that its “health and welfare” would be endangered by its removal, the Circuit Court of Wyoming County would still have jurisdiction, and, upon a proper showing, could by injunction continue “the temporary custody” of the child in the Millers, or elsewhere, pending its recovery.
Hammond v. Department of Public Assistance, 141 W. Va. 719, 95 S. E. 2d. 345, is clearly distinguishable from this case and from the Pettrey case. Judge Lovins, who wrote the opinion in the Hammond case, said: “*** We are cited to the recent case of State Department of Public Assistance v. Pettrey, supra. As hereinabove stated, the instant case is to be distinguished from the Pettrey case supra.” The Millers cannot adopt this child, nor can they in any suit or proceeding acquire permanent custody of it, unless the decision in the Pettrey case is over*867ruled, or the position of the parties change so as to create the situation that prevailed in the Hammond case. There is no suit or proceeding pending in the Circuit Court of Wyoming County challenging the right of the petitioner to the lawful custody of this infant. The petitioner is no longer restrained by the sixty day temporary injunction. It is not clear to me why, under these circumstances, the writ of habeas corpus should be discharged and the petitioner left to its remedy, if any, in the suit pending in the Circuit Court of Wyoming County. I would award the peremptory writ directing the Millers to forthwith deliver the custody of the infant to the petitioner and deny the writ of prohibition since the Circuit Court initially had jurisdiction to issue the temporary injunction as prayed for, although the period covered by the injunction has expired, and the only real issue before this Court arises from the habeas corpus proceeding.
I am authorized to say that Judge Given concurs in the views expressed in this dissent.