Willis v. Willis-165 Ind. 325. doth now overrule said motion, to which ruling of the court said respondents except, and ninety days are given them to file bill of exceptions, and respondents now pray an appeal to the Supreme Court," etc. This is the only ruling shown by the record. It is therefore evident that the second paragraph of appellant Nathaniel P. Willis's separate assignment under this state of the record is not shown to be based on any ruling exhibited therein. Which of the two written motions filed by the respondents for a new trial was overruled is wholly left to surmise or conjecture. The assignment in question specifically shows that the ruling upon which said appellant predicates error was one to which he alone excepted, while the record discloses that both of the respondents jointly excepted to the ruling of the motion therein mentioned. That under the circumstances there is a wide variance between the assignment in question and the record is certainly manifest. It is settled beyond controversy that an assignment in a case on appeal to this court, which has no foundation of fact disclosed by the record upon which it can rest, presents no question, and must be disregarded. Ewbank's Manual, §§127, 137; Singer v. Tormoehlen (1898), 150 Ind. 287, and cases there cited; Meyer v. Meyer (1900), 155 Ind. 569; Southern Ind. R. Co. v. Harrell (1904), 161 Ind. 689, 63 L. R. A. 460; Smith v. Borden (1903), 160 Ind. 223; Chicago, etc., R. Co. v. Walton (1905), post, 642, and cases there cited. As there is no ruling of the trial court upon which appellant Nathaniel P. Willis can base the second paragraph of his separate assignment, it follows that the question which he attempts to present in respect to the insufficiency of the evidence can not be considered. Finding no available error, the judgment below is affirmed. Willis v. Willis-165 Ind. 332. WILLIS v. WILLIS. [No. 20,574. Filed October 13, 1905.] 1. HABEAS CORPUS. Judgment. Appeal.-Effect.-Statutes.Section 650 Burns 1901, $638 R. S. 1881, providing that a termtime appeal shall operate as a stay of all further proceedings on the judgment appealed from, does not give the defendant custodians of an infant child the right of retaining such custody during such appeal where the judgment awards the custody to another. Garner v. Gordon, 41 Ind. 92, overruled. p. 334. 2. SAME. Judgment. - Appeal Bond. - Purposes.-An appeal bond, given to perfect a term-time appeal in a habeas corpus case, does not invest such appellant with the right to the custody of the subject-matter of the action, as against such judgment, but merely stays the issuance of an execution on the judgment, such judgment as to the custody of the subject-matter being self-executing. p. 337. - 3. COURTS.-Jurisdiction.-Habeas Corpus.-The circuit court rendering judgment in a habeas corpus case has jurisdiction over the parties thereto and can enforce its orders any place within the State. p. 338. 4. JUDGMENT.-Res Judicata.-Habeas Corpus.-The defense of res judicata is available in habeas corpus cases. p. 339. From Montgomery Circuit Court; Jere West, Judge. Habeas Corpus by Nathaniel Parker Willis against Hattie Belle Willis. From a judgment for defendant, plaintiff appeals. Affirmed. Henry N. Spaan, for appellant. James A. Collins and Charles A. Averill, for appellee. JORDAN, J.--This was a proceeding by appellant against appellee for a writ of habeas corpus to obtain the custody of a child. The petition presented for the writ shows, among other things, substantially the following facts: The petitioner and the respondent are husband and wife, living separate and apart, and are the parents of the child in controversy, Mary Frances Laura Willis, of the age of two years. This Willis v. Willis-165 Ind. 332. child is in the custody of its mother at the town of Ladoga, Montgomery county, Indiana. On September 1, 1904, and prior to the commencement of this action, said parties were living separately, said child at that time being in the custody of the petitioner. On said date the respondent instituted an action of habeas corpus against the petitioner and his mother, Ella Willis, in the Marion Circuit Court, for the purpose of securing the possession and custody of the child now in controversy. On the hearing of said proceeding, the Marion Circuit Court found in favor of the respondent, and by its judgment and decree awarded to her the possession, care and custody of said infant child. Thereupon the petitioner herein moved for a new trial. This motion was denied, and an appeal in term time was prayed to the Supreme Court of said State, which was granted, upon the condition that the petitioner file an appeal bond in the penal sum of $5,000 within ten days from September 26, 1904. This bond was filed within the time given, and approved by the court, and thereupon said petitioner moved and requested the court to remand said child to his care and custody during the pendency of said appeal. This motion was afterwards withdrawn, and the following was in open court entered of record: "Come now the parties, and the respondents, by leave of court, withdraw their motion to remand Mary Frances Laura Willis to the care and custody of respondents pending the decision of this cause by the Supreme Court on appeal, and it is agreed by all the parties to this action that pending the appeal in this cause, and until the Supreme Court shall have finally passed upon the appeal herein, said Mary Frances Laura Willis shall be and remain in the care and custody of her mother, said Hattie Belle Willis, and the court does now order that said child, Mary Frances Laura Willis, shall be and remain in the care and custody of her mother, as aforesaid, until said appeal shall finally be determined, and that said child shall during Willis v. Willis-165 Ind. 332. the pendency of said appeal, and until said appeal shall have been finally determined, be kept by the mother within the jurisdiction of this court." The appeal was perfected. Within fifteen days after the making of the above order said Hattie B. Willis took said child to Ladoga, Montgomery county, Indiana, where it is now under her custody and charge. Prayer for a writ of habeas corpus, and that on the hearing of the petition the possession, care and custody of the child be given to the petitioner. The petition was duly verified, and thereon a writ of habeas corpus was issued. Respondent appeared in court, and, through her counsel, moved to quash the writ for insufficiency of the facts alleged in the petition. This motion, over petitioner's exception and objection, was sustained, and judgment was rendered against him for costs. From this judgment he appeals, and assigns that the court erred in sustaining the motion to quash the writ of habeas corpus. The propositions presented by counsel to show that under the facts alleged in the petition appellant was entitled to the possession and custody of the child, and that there1. fore the court erred in quashing the writ, are: (1) Appellant having filed an appeal bond, and taken and perfected an appeal to the Supreme Court from the judgment of the Marion Circuit Court in the former action between him and appellee, therefore all proceedings on the judgment or decree from which the appeal was prosecuted were stayed, and he was entitled to retain the possession and custody of his infant child during the pendency of the appeal to the Supreme Court, notwithstanding the fact that the care and custody thereof under the judgment had been awarded to appellee; (2) under the above agreement, which she entered into in court, she bound herself to keep the child within the jurisdiction of the Marion Circuit Court, and that in taking the child to Ladoga, Montgomery county, to reside with her, she violated and broke said agreement, for Willis v. Willis-165 Ind. 332. the reason that said county of Montgomery is not within the jurisdiction of the Marion Circuit Court, within the meaning of the provisions of the agreement in question. Appellee having therefore violated the agreement by taking the child beyond the jurisdiction of the Marion Circuit Court, appellant was thereby restored to his former right to have and retain the custody of the child during the pendency of the appeal, by virtue of the fact that he had filed an appeal bond to stay the proceedings on the judgment of the Marion Circuit Court, from which he had appealed. Neither of the above propositions, as advanced by appellant's learned counsel, is tenable. Under the laws of this State there certainly are no sufficient grounds or reasons to sustain the first proposition. The fact that appellant, as shown, filed an appeal bond, and appealed to the Supreme Court, from the judgment in the former habeas corpus proceedings, did not operate to give him the right over the judg ment to retain the custody of the infant child during the pendency of the appeal in controversy. It is true that $650 Burns 1901, §638 R. S. 1881, in respect to a term-time appeal, provides: "When an appeal is taken during the term at which judgment is rendered, it shall operate as a stay of all further proceedings on the judgment, upon an appeal bond being filed by the appellant, with such penalty and surety as the court shall approve, and within such time as it shall direct, payable to the appellee, with condition that he [appellant] will duly prosecute his appeal and abide by it and pay the judgment and costs which may be rendered or affirmed against him." This section contains further provisions in regard to the condition of such appeal bond, where the appeal is taken from a judgment for the recovery of real property or the possession thereof, or from a judgment for the return of personal property, etc. The effect of this section has been considered by this court in several cases. In Padgett v. State (1884), 93 Ind. 396, it was held that |