The relator filed his petition herein for a writ of mandate to compel the respondent court and judge to ássert jurisdiction over the relator’s two "actions for writs of habeas corpus filed in said court. „ .
An alternative writ was issued by this court, commanding the Superior Court of Marion County, Room No. 1, and Honorable M. Walter Bell as Judge thereof to set aside and expunge that part of its order of June 16, 1960, in the consolidated causes of action in said court, No. S60-3976 and No. S60-3981, in which James R. Gregory is the plaintiff and Richard M. Nay, Jean. P. Nay, Thomas N. Hindman, Jr. and Marjorie Hasbrook Hindman are the defendants, in which actions the plaintiff seeks Writs of Habeas Corpus against the defendants for the custody of certain children. That court ordered that said consolidated actions “be transferred to the Superior Court of Marion County, Room 5 and that they be consolidated in the action entitled James R. Gregory •u.Mariam Waldo Gregory, Cause C-7250 which action is now pending in the said Superior Court of Marion County, Room 5”; and that thereafter said Marion Superior Court, Room 1, and the judge thereof was ordered to retain jurisdiction of said causes of action, and conduct further proceedings therein as required by law; or on failure so to do, that said respondents file their return herein showing any reason in law or in fact why this writ should not be made permanent.
The respondents filed their return which in essence reads as follows:
“I. That the issue before Respondents was whether or not Respondents, herein, had jurisdiction to hear and determine a divorced father’s *45petition for writ of Habeas Corpus, seeking custody of his children, as against the asserted jurisdiction of Superior Court of Marion County, Room No. 5, in which latter court said divorce was granted and custody of said children awarded to the divorced mother, recently deceased, and under circumstances wherein, shortly after said mother’s death, said latter court had heard an intervening petition to modify custody order and had issued its decree to change the custody of said children (to defendants in the cause below) upon said intervening petition of the divorced father’s sisters, in which proceedings the divorced father appeared adversely, and suffered said adverse decree, and when at the time the petitions for Habeas Corpus were filed before respondents, said latter court had previously heard evidence in part and continued for further evidence, the intervening petitioners’ petition to restrain the divorced father from annoying the persons to whom the custody of said children had been awarded.
“II. Respondents took the view that upon the death of the mother, the cause in Superior Court of Marion County Room No. 5 ceased to exist, hence said court had no further jurisdiction, and so Respondents exercised jurisdiction as set out in Paragraph III following.
“HI. The causes (for habeas corpus) were consolidated without objection. (There were two sets of defendants, being, each, a married couple to whom Superior Court of Marion County, Room 5, had awarded custody of certain of said children.) Respondents sustained plaintiff’s exceptions to both returns to the writs of habeas corpus (based upon prior jurisdiction of the divorce court) and ordered the consolidated cause transferred to the divorce court, the Superior Court of Marion County, Room No. 5, and consolidated there with the original cause for divorce for further proceedings in said causes of habeas corpus.
“IV. Neither party was agreeable to Respondents’ ruling, defendants taking the view that said original cause for divorce and the divorce *46court were the proper cause and forum in which to determine all questions of custody. Respondents understand plaintiff (relator herein) seeks to mandate Respondents to exercise jurisdiction, while defendants seek to mandate Respondents to expunge the record of all rulings and entries and dismiss said causes for habeas corpus. Accordingy, the conflicting views will be adequately presented to the Supreme Court of Indiana and Respondents will, therefore, file no brief, but abide this court’s decision.”
The question presented here, eliminating the multiplicity of pleadings and all excess verbiage, is solely one of jurisdiction. The purported interveners in the action in Superior Court, Room 5, contend that court has exclusive jurisdiction to determine all the issues in controversy; the relator here contends that Superior Court Room 1, has exclusive jurisdiction in the habeas corpus proceedings to determine the questions raised in that proceedings.
In order that a clearer understanding of the record may be had, we set out briefly a chronological narration of the events leading- up to this original action. It appears that on June 13, 1960, relator filed in Superior Court of Marion County, Room No. 1, a petition for a writ of habeas corpus against Richard M. Nay and Jean P. Nay to obtain custody of relator’s children, John Ralph Gregory, age 14, and Marianne Gregory, age 9, which cause was numbered S60-3976 on the dockets thereof; at the same time relator filed in that court as cause No. S60-3981 a second petition for a writ of habeas corpus against Thomas N. Hindman, Jr. and Marjorie Hasbrook Hindman to obtain custody of relators child, Alison Gregory, age 6. The Nays were holding John Ralph Gregory and Marianne Gregory under the purported authority of an order of Superior Court of Marion *47County, Room No. 5, under purported cause No. C-7250 therein. The Hindmans were holding Alison Gregory as friend or purported agents of James R. Talbott and Barbara R. Talbott, principals, who were purported to be granted custody of Alison Gregory by the same order.
Cause No. C-7250 was a divorce action commenced August 31, 1954, in the Superior Court of Marion County, Room No. 5. James R. Gregory, relator herein, was the plaintiff and cross-defendant. Mariam Waldo Gregory, mother of the children named herein, was the defendant and cross-complainant. She was granted a final divorce therein and custody of said children on November 15, 1954, the decree awarding the custody of the children to the mother, found that she was a suitable and proper person to have their custody, but made no finding at all as to the fitness or unfitness of the father to have said children, and thereafter on February 27, 1960, the said Mariam Waldo Gregory was deceased.
On March 2, 1960, Martha Spangler of Ohio and Florence Cartlidge of Hendricks County, Indiana, filed in purported cause No. C-7250 in the Superior Court of Marion County, Room No. 5, a document entitled “Petition for Interlocutory Order of Custody,” requesting permission to “intervene,” praying for custody of the minor children of the Gregorys’ and that relator be enjoined from taking custody. Various proceedings were had and pleadings filed by the parties in Superior Court Room 5 until June 13, 1960, at which time the relator filed his petition for habeas corpus in the Superior Court of Marion County, Room No. 1. Writs were issued upon relator’s habeas corpus actions in the Superior Court of Marion County, Room No. 1, returns were filed al*48leging that the Superior Court of Marion County, Room No. 5, had jurisdiction of the subject matter. Relator filed exceptions alleging that said returns were not sufficient answers to the habeas corpus petitions. The said habeas corpus causes were consolidated, and, on June 16, 1960, the said Superior Court of Marion County, Room No. 1, Hon. M. Walter Bell, Judge thereof, entered an order sustaining relator’s exceptions, but ordering that the consolidated habeas corpus causes be transferred to the Superior Court of Marion County, Room No. 5, for consolidation with cause No. C-7250. It is from this refusal of the respondents, the Superior Court of Marion County, Room No. 1, Hon. M. Walter Bell, Judge, to exercise jurisdiction over consolidated causes No. S60-3976 and S60-3981 that relator seeks relief herein.
The proceedings in Room 5, Marion Superior Court, were instituted by the petitioners against the relator herein on the theory that by virtue of the former decree of that court granting unto the the deceased wife, Mariam Waldo Gregory, a divorce and the custody of the minor children of the parties, that said Superior Court, Room 5, retained jurisdiction of the children, and that any action seeking to modify the former divorce decree with respect thereto would properly be instituted in that court. Under the better reasoned authority it would appear that the divorce proceedings terminated entirely and died with the death of the former wife of relator on February 27, 1960. Bryan v. Lyon et al. (1885), 104 Ind. 227, 3 N. E. 880; 74 A. L. R., 1352, 1353, (1931) ; 39 A. L. R. 2d 258, 260, (1955); 2 A. L. R. 2d Supp. Service 2791, (1960) and cases cited. Relator contends that his appearance to defend against the *49ex parte intervention and modification, orders in the action in Superior Court, Room 5, did not confer or revive jurisdiction in said proceedings. He cites the following cases and authorities. Morrison v. Morrison (1960), 130 Ind. App. 270, 164 N. E. 2d 113; Hughes v. Bowen (1943), 193 Okla. 269, 143 P. 2d 139; Bryan v. Lyon et al. (1885), 104 Ind. 227, 3 N. E. 880; 54 Am. Rep. 309; State ex rel. Gravelle v. Rensch (1950), 230 Minn. 160, 40 N. W. 2d 881; In re. De Leon (1924), 70 Calif. App. 1, 232 Pac. 738; Woodford v. Superior Court (1957), 82 Ariz. 181, 309 P. 2d 973; 39 A. L. R. 2d 260, 278.
At the hearing on March 18, 1960, on the intervening petition filed in cause No. C-7250, the divorce case in Marion Superior Court, Room 5, there was a finding by the court reading in pertinent part as follows:
“ . . . and the parties now advising the Court that they are now in agreement and having stipulated sufficient facts to the Court, the Court being duly and sufficiently advised in the premises now finds for the intervening petitioners, Florence Cartlidge and Martha Spangler and against the Plaintiff, James R. Gregory on his answer to said petition; ...”
In the case of Combs v. Gilley (1941), 219 Ind. 139, 145, 36 N. E. 2d 776, this court recited the rule of common law as follows:
“ ‘Both under the common law and the statutes of this State, the natural parents are entitled to the custody of their minor children, except when they are unsuitable persons to be entrusted with their care, control and education.’ Gilmore v. Kiston (1905), 165 Ind. 402, 406, 74 N. E. 1083.”
*50*49We find no inconsistency in the fact that the father on March 18, 1960, saw fit to permit persons *50other than himself to have the care and custody of said minor children. Being entitled on the death of the mother, in the absence of any showing in a proper forum, that he was an unsuitable person to have such care and custody, he would by operation of law, be entitled to have such care and custody, and could for the sake of the children permit such custody to be vested temporarily in persons other than himself.
On June 13, 1960, the father instituted his actions in habeas corpus' to regain possession of said children in Superior Court Room 1. There can be no question as to the propriety of habeas corpus as a remedy in the instant case. Acts 1881 (Spec. Sess.), ch. 38, §802, p. 240, being §3-1903 Burns’ 1946 Replacement; Combs v. Gilley (1941), 219 Ind. 139, 36 N. E. 2d 776; Bryan v. Lyon et al. (1885), 104 Ind. 227, 3 N. E. 880; Henson v. Walts et ux. (1872), 40 Ind. 170; Bounell v. Berryhill (1851), 2 Ind. 613.
In view of the decision we have reached in this case it is not necessary, nor do we hereby determine the right of the intervenors to intervene in this action. The determinative question here has been decided in the case of Hughes v. Bowen (1943), 193 Okla. 269, 270, 143 P. 2d 139, in such case the court having stated as follows:
“Though the trial court in a divorce action has continuing jurisdiction over the custody and support of minor children even after. final judgment in the action (12 O.S. 1941 §1277), when a party to the action dies the court’s jurisdiction for all purposes ceases so far as the custody and control of the children are concerned. In 17 Am. Jr. 525, it is said that upon the death of one of the parties divorced by the judicial decree, the divorce proceedings falls so far as *51concerns any further right to the custody of the children.
“Upon the death of the parent into whose custody the children are placed by the decree of divorce, the., children stand, with relation to the surviving parent and all the world, as if no decree of divorce had been entered. In' such case the right to custody of the children inures automatically to the surviving parent. 74 A. L. R. 1353, annotation. It is there said by the annotator:
“ ‘The prevailing rule clearly is, that, upon the death of the parent who has held custody under a divorce decree, the right to custody automatically inures to the surviving parent.’
“In event custody is withheld from the surviving parent, his or her remedy is habeas corpus, unless custody is withheld pursuant to order of the county court in guardianship proceedings, or by order of said court issued under the adoption or juvenile statutes . . .” See also: Woodford v. Superior Court (1957), 82 Ariz. 181, 309 P. 2d 973.
The alternative writ of mandate heretofore issued is now made permanent. The Superior Court of Marion County, Room No. 1, Hon. M. Walter Bell, Judge, is directed to reassume jurisdiction in causes No. S60-3976 and No. S60-3981 for further proceedings therein in accordance with law.
Bobbitt, J., concurs.
Arterburn, J., concurs in result.
Landis, C. J., dissents with opinion.
Achor, J., dissents with opinion.