Writ of habeas corpus was issued from this Court on petition of Relator directed to respondent, the purpose of which was to secure the custody and control of Frances Kathryn and Bernice Loreen Watland, minor children of Relator. The theory of the application for the writ was that Respondent was appointed guardian of said minor children while Relator was under an adjudication of insanity and under guardianship but that he has since recovered, has been adjudicated sane and is now entitled to the custody and control of his minor children.

Respondent, Myrtle K. Hurley, moved to quash the writ of habeas corpus. She attached to and made a part of said motion a transcript of the proceedings in the case of Andrew R. Watland v. Myrtle K. Hurley, tried in the probate court of Pinellas County, wherein Relator sought to have Respondent disqualified and discharged as guardian of his said minor children and their estate, it being contended that said proceedings are resadjudicata as to the issue presented in this case. When the motion to quash came on for hearing, we continued it until the appeal then pending in the latter case was perfected in this court. We shall hereafter speak of it as the "companion case."

We treat the motion to quash as a return to the writ because, (1) It sets out the matters of law and fact alleged *Page 897 to be res adjudicata of the issues raised, (2) We do not recognize the practice of moving to quash a writ of habeas corpus, it being a writ issued on a very informal application and the proceeding pertaining to it being informal, the parties are permitted to go beyond the petition and inquire into any matter affecting the legality of the detention, and (3) We are now in possession of the record and briefs in the companion case which seem to be conclusive of the questions raised in this case.

For a decision in one case to be res adjudicata of the questions raised in another case, there must be (1) Identity in the thing sued for, (2) Identity in the cause of action, (3) Identity of persons and parties to the action, (4) Identity of the quality in the person for or against whom the claim is made. Gray v. Gray, 91 Fla. 103, 107 So. 2d 261; Hay v. Salisbury, 92 Fla. 446, 109 So. 2d 617; Brundage v. O'Berry, Jr., 101 Fla. 320,134 So. 2d 520.

The ultimate question involved in the instant case is whether or not Relator, Andrew R. Watland, should be granted the custody of his minor children. This question turns on that of whether or not under the facts shown, he is competent and qualified to assume that responsibility, and if so, would the interest of the minors be best served by granting it to him. The ultimate question involved in the companion case is whether or not Myrtle K. Hurley should be relieved of the guardianship of the persons and property of the minor children of Andrew R. Watland and some other persons appointed in her place. This question turns on that of whether or not, under the facts shown she is competent and a fit person to be vested with that responsibility and the interest of said minors require that her guardianship be continued.

From this, it follows that while the parties and subject matter of the two causes are to all intents and purposes *Page 898 identical, the ultimate and the immediate purpose of both is different. The qualification or disqualification of Andrew R. Watland has no relation to the qualification of Myrtle K. Hurley but when the facts as to these elements are presented as they are in the companion case, we are enabled to adjudicate the questions presented in the instant case.

In the companion case, we reviewed at some length the facts and circumstances out of which both cases arose and held that Myrtle K. Hurley was a competent and proper person to be the guardian of the persons and property of Relator's minor children, that she was regularly appointed to that position and as against the contention of Relator, we refused to relieve her and appoint another in her stead. The ultimate reason being that the interest of the minors would not be best served by the change.

The interest of the minors is the matter of first consideration in this case. The desire of Relator and the qualification of Respondent are important factors but they are secondary. The fitness and advisability of naming Relator as guardian for his minor children was necessarily considered in the companion case, he having expressed a willingness and desire to be named. In holding that as against Respondent, under the facts shown, he or some one suggested by him would not be appointed, we considered and approved Respondent's appointment, so the question raised in this case must be foreclosed by what we said in the companion case, which is filed this date. The reasons for our conclusion as to the status of both parties are recited in extenso in the companion case and will not be detailed here. The fact that Relator is not in condition to take full responsibility for the guardianship of his minor children and their estate in no sense means that he should be separated from them and our adjudication in the companion case *Page 899 should not be construed as precluding him from seeing them and enjoying their companionship at such times and under such conditions as are agreeable to the minors and the guardian or as the Court may prescribe.

We are conscious of the element of time that elapsed between the institution of these cases, but the state and condition of the minors and their estate, the condition of Relator and other factors that affect the subject matter make this a much more difficult case to adjudicate than the average case of the kind. The Court below has demonstrated a very thorough knowledge of the situation and capacity to handle it.

The motion to quash should be granted, but without prejudice to Relator to apply to the Circuit Court for an order permitting him, if that be necessary, to visit his minor children, and if proper in the judgment of the Court to be awarded their custody at such times and under such conditions and restrictions as he may decree.

WHITFIELD, J., concurs.