Ralph Schwartz, Philadelphia, for appellant.
William T. Connor, Philadelphia, for appellee.
Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Arnold and Gunther, JJ.
[ 170 Pa. Super. Page 152]
In this habeas corpus proceeding Robert Crawford, respondent, has appealed from an order of the court below granting the custody of Barbara Jean Crawford, age 11, and Rodney Crawford, age 9, to Rachel Crawford, relatrix. We granted a supersedeas so that the children have been with appellant pending disposition of this appeal.
Relatrix filed her first habeas corpus petition on January 14, 1948. The matter was heard by Judge Bonniwell who, after hearing, awarded custody of the children to Robert Crawford, appellant, on March 5, 1948. Relatrix thereafter on June 2, 1949, filed her second habeas corpus petition. The writ was allowed by Judge Linton and came on for hearing before him on June 29, 1949. Testimony was taken before Judge Linton and for the first time there was an intimation that the marriage of the parties was bigamous. Judge Linton, upon learning that Judge Bonniwell had heard the case originally, referred the matter to him for decision. The record shows no disposition of this second writ of habeas corpus and reads as follows: 'Writ of habeas corpus continued until the return of
[ 170 Pa. Super. Page 153]
Judge Bonniwell; mother to have children on Sundays, from two to four p. m.'. The second proceeding was pending and undisposed of when relatrix on January 3, 1951, filed her third habeas corpus petition seeking custody. The court below which heard evidence on the third writ and from which the present appeal was taken concedes that no disposition of the second writ was made.*fn1
This case clearly exhibits the reason why this Court in Commonwealth ex rel. Moss v. Moss, 159 Pa. Super. 133, 135, 47 A.2d 534, noted its disapproval of the practice of several judges participating in custody hearings. Ordinarily, a judge first assigned to a case involving the welfare of children is better qualified to dispose of subsequent proceedings. Cf. Commonwealth ex rel. Goldenberg v. Goldenberg, 159 Pa. Super. 140, 141, 47 A.2d 532.
The question is whether a subsequent writ of habeas corpus may issue and be disposed of where a prior writ of habeas corpus between the same parties and involving the same issues is pending and undisposed of. We think not. Cf. Commonwealth ex rel. Piper v. Edberg, 346 Pa. 512, 31 A.2d 84.
However liberally inclined the courts might be concerning the litigation of successive habeas corpus proceedings involving custody of children, it is clear that litigation must be conducted in an orderly manner to a definite conclusion. The second writ of habeas corpus should have been disposed of first and the pendency of that writ was ...