Dissenting Opinion
Landis, C. J.Petitions for habeas corpus were filed in respondent court asking for custody of children, to which defendants filed returns asserting such custody by defendants was pursuant to the decree of *58another court of competent jurisdiction. We are asked here to mandate respondent court to hear the habeas corpus actions notwithstanding the returns filed.
In this original action in the Supreme Court we are confronted with a question of conflict of jurisdiction between two courts of co-ordinate jurisdiction, viz.: the Superior Court of Marion County, Room 5, wherein the defendant wife had been granted a divorce and custody of the children in 1954; and the Superior Court of Marion County, Room 1, respondent herein, in which latter court the ex-husband and relator filed on June 13, 1960, subsequent to the ex-wife’s death, habeas corpus proceedings for custody of the children.
There is a division of authority in this country as to whether upon the death of one of the parties to a decree of divorce and custody of children, that court retains a continuing jurisdiction of said cause in the future, or whether such matter should instead be adjudicated in court in a habeas corpus proceeding. See :39 A. L. R. 2d 258 (2 A. L. R. 2d, 1960 Supp.). The courts of Indiana do not appear to have ruled on such question although habeas corpus has sometimes been used where no question of the continuing jurisdiction of the court granting the divorce and custody was before the court.1
*59However, a case is not here presented in my ■ opinion for our determination of where Indiana Stands among the conflicting decisions of the courts of other states, as here it appears that relator subsequent to his former wife’s death on February 27, 1960, and prior to his filing of habeas corpus proceedings in respondent court on June 13, 1960, voluntarily entered into the following proceedings under the cause number of the prior divorce action and judgment in Superior Court of Marion County, Room 5, viz:
1. Plaintiff [Relator] filed answer to intervenors’ petition for custody.
2. Hearing had thereon on March 18, 1960, wherein plaintiff [relator] and intervenor agreed and stipulated to facts and respondent court thereupon found against plaintiff [relator] and for intervenors and granted custody of the children as requested by intervenors.
3. Thereafter, on April 11, 1960, plaintiff [relator] filed petition for determination of visitation rights of plaintiff, subsequently allegedly dismissed by plaintiff.
4. Thereafter, on May 23, 1960, plaintiff [relator] filed answer to intervenors’ petition to modify custody order.
5. Thereafter, on May 23, 1960, plaintiff [relator] filed affidavit for change of judge.
It is my opinion in this case that relator must be deemed estopped to deny jurisdiction of the *60Superior Court of Marion County, Eoom 5, over custody of the children, and estopped from invoking the jurisdiction, of respondent court by his act of voluntarily re-submitting himself to the jurisdiction of Superior Court No. 5 after the death of his former wife, Mariam Waldo Gregory, and prior to the filing of habeas corpus proceedings in respondent court.
It is well settled that if the jurisdiction of a court possessing jurisdiction of the subject matter2 is invoked in a controversy by a party who submits himself to its authority by entering a general appearance and filing pleadings on the merits, such party may not thereafter if dissatisfied with the outcome of the litigation then for the first time question the jurisdiction of the court to which he voluntarily submitted and thereupon properly file the case in another court of co-ordinate jurisdiction. See cases: State ex rel. Carr v. Marion Superior Court (1961), 241 Ind. 403, 172 N. E. 2d 668, 669, 670; State ex rel. Tuell v. Shelby Circuit Court (1939), 216 Ind. 231, 236, 23 N. E. 2d 425, 426; State ex rel. v. Madison Circuit Court (1923), 193 Ind. 20, 27, 138 N. E. 762, 765. Any other result would make our judicial system chaotic and prevent the orderly determination of lawsuits.
It is therefore grievous error in my judgment for this court to mandate one court to hear a habeas corpus action regarding custody brought by relator when such matter has just previously been submitted by a relator to a previous court having jurisdiction *61of the subject matter which previous court has determined and disposed of the case. Yet that is what the prevailing opinion is doing.
I would dissolve the alternative writ and deny the permanent writ.
Note. — Reported in 176 N. E. 2d 126.
. 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, 54 Am. R. 309; Henson v. Walts et ux. (1872), 40 Ind. 170; Bounell v. Berryhill (1851), 2 Ind. 613.
It will be noted that the statement in the prevailing opinion in the instant case, “. . . There can be no question as to the propriety of habeas corpus as a remedy in the instant case”, is not controlling as neither the statute nor the cases therein cited purported to deal with or consider the question of the continuing jurisdiction of the court previously granting the divorce and custody which everyone concedes existed prior to the death of the wife.
*59It should also be noted that the Oklahoma case of Hughes v. Bowen (1943), 193 Okla. 269, 143 P. 2d 139, upon which the prevailing opinion places chief reliance, itself recognizes certain exceptions to the availability of habeas corpus under Oklahoma law (as appears in the prevailing opinion’s quote), viz.: “. . . [when] 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 . . .” It is therefore apparent the Oklahoma court did not consider habeas corpus an all-inclusive remedy where another court had taken other valid legal proceedings.
. It indeed cannot be questioned that the Superior Court of Marion County, Room 5, possessed jurisdiction of the subject matter, i.e., jurisdiction of the class of cases to which the instant case belongs. In fact its statutory jurisdiction is identical with that of respondent court which was created by the same act. (Burns’ §§4-1401 to 4-1421, inch)