DISSENTING OPINION. In McDonald v. Short (1921), 190 Ind. 338 at pp. 344, 345, 130 N.E. 536, this court, citing authority, held that, whether a judgment as to the custody of children grew out of a divorce proceeding or a proceeding in habeas corpus, the children were in the custody of the court and subject to its disposition under its general jurisdiction, and that such a judgment is conclusive between the parties until modified or set aside for cause subsequently shown by an appropriate proceeding in the same cause. The court, quoting from Stone v. Stone (1902),158 Ind. 628, 64 N.E. 86, said: "The fact that the court has rendered judgment upon one state of facts, and disposed of the children as their best interests then required, does not impair the power of the court to decide upon another state of facts, subsequently arising, which affect their welfare."
The proceeding here was brought for the purpose of securing a change of the custody of the child in the manner expressly approved by the foregoing cases. I respectfully dissent from the action of the court which is contrary to the well-settled rule stated in the foregoing cases. *Page 684