¶1(dissenting).
¶2The facts in this case are not such as to authorize this court in changing the attempted appeal to one of certiorari. By changing the action as it has without an informer or movant, and without the knowledge or- consent of either the plaintiff or the defendant the court has in effect instituted an action on its own motion. I am not saying that the court should not do that if' and when a public question of great importance arises when the state is involved and there is no other remedy available as in the two cases from the State of Mexico used as authority for the majority opinion. This is not that kind of a case. No public interest is involved, and there is a remedy otherwise. The plaintiff in error could get his right to the custody of the children enforced by the court where the divorce was granted, and his right to the custody of the children obtained. Also Habeas Corpus would lie in the proper forum.
¶3This court has changed the action and taken jurisdiction solely for the reason the judgment appealed from is thought to be void. Admitting that the judgment appealed from is void that is no basis for changing the action to one of certiorari. ■It lies only when there is no right of appeal or remedy otherwise provided. This court should not be concerned about the merits of a case in determining whether it will take jurisdiction by certiorari, but ascertain if there is any other remedy available for the parties. If so the relief sought by certiorari should be denied. If there is no other remedy then upon proper application, and order of the court directing the record of the lower court be certified to this court and when that is done the court, after reviewing the record, decides the case on the merits by either affirming or reversing the judgment of the trial court. Had the trial court denied the mother and her husband the right to adopt the children, and his judgment, for argument sake, was correct, would this court then change the attempted appeal, without an informer or movant, and without even the knowledge or consent of either of the parties by talcing jurisdiction as in certiorari. My guess is the court would not. If I am right then it is evident the attempted appeal was changed to one in certiorari not because there was no other remedy available.
¶4I respectfully dissent.
¶5■ I am authorized to state that Justice BLACKBIRD concurs in the views herein expressed. , ■