Berkshire v. Caley

Decision Date28 May 1901
Docket Number19,180
Citation60 N.E. 696,157 Ind. 1
PartiesBerkshire v. Caley et al
CourtIndiana Supreme Court

From White Circuit Court; Truman F. Palmer, Judge.

Habeas corpus by Solomon M. Berkshire against James W. Caley and others to obtain the custody of plaintiff's minor child. From a judgment in favor of defendants, plaintiff appeals.

Affirmed.

A. W Reynolds, and A. K. Sills, for appellant.

OPINION

Jordan, J.

This was a proceeding of habeas corpus instituted by appellant, Solomon M. Berkshire, against James W., Edward W and Augusta Caley, to obtain the custody of his daughter Nora B. Berkshire. It appears that of the defendants, appellees herein, James W. Caley is the grandfather, Edward W., is the uncle, and Augusta Caley is the aunt by marriage, of the child in controversy. Appellant avers in his petition that Nora B. is his child; that she is past the age of nine years, and that he is lawfully entitled to her custody; that said defendants have seized her body and restrained her of her liberty and deprived him of the custody or possession of said Nora B., by forcibly keeping her in their possession in White county, Indiana, and that such restraint is unlawful and without right. The writ was awarded and made returnable on August 24, 1899. On that date the defendants appeared and made returns to the writ. Edward W. and Augusta Caley upon their part, for return thereto, alleged and set forth that they neither jointly nor separately at the commencement of the action or at the time of their return to the writ had the custody or control of the said Nora B. Berkshire, and in no manner did they deprive her of her liberty. The defendant, James W. Caley, for return, alleged and represented to the court that he had the body of said Nora B. before it, but he averred that it was not true that he restrained her of her liberty as charged by the petitioner, but alleged the facts to be that said child remained with him as a part of his family of her own free will and choice; that he, before the institution of this action, was, by the clerk of the White Circuit Court, duly appointed her guardian, she being a minor of the age of nine years; that said Nora B. is the daughter of the plaintiff and Nettie B. Berkshire, who were formerly husband and wife, the latter being his daughter; that about October 10, 1897, plaintiff in the Cass Circuit Court procured a decree of divorce from his said wife, Nettie B., and that by an agreement between said parties the latter was to have and retain the custody of their said infant daughter, Nora B.; that her said mother took and retained the custody and possession of the said child until August 19, 1899, when the said Nettie B. Berkshire died; that on her deathbed she gave to the defendant the care and custody of said Nora B., and requested that he, with the aid of his codefendants Edward W., and Augusta Caley, care for, raise, and protect her said child; that said Nettie B., being aware of the cruel and malignant disposition and character of the plaintiff, requested and pleaded that said child should be not given into his care or custody; that after plaintiff and his wife were divorce, the former did not visit his said child until after the death of her mother; that after obtaining the divorce heretofore mentioned, the plaintiff married a widow who had minor children by her former marriage, all of which children resided with plaintiff as members of his family, and if the custody of Nora B. is awarded to him she will be required to live with him and her stepmother and her said children by the former marriage, which defendant avers, under the circumstances, will be detrimental to the best interests of said Nora B. The defendant further avers that he has a good farm and a good house thereon and is amply able to care for and properly raise and protect said child, who is very much attached to him and his family, and who refuses to go to live with her said father, and that the latter is not situated or in the condition to give her the advantages which she will enjoy if left with the defendant, and it is further alleged and charged that the petitioner is not a fit or suitable person to have the custody and control of said child.

After unsuccessfully moving to make this return more specific, appellant filed his answer thereto, whereby he admitted the fact of the divorce from the mother of the child, and the custody of the latter had been transferred to its said mother by means of an agreement, as averred in the return, and that she retained the same until her death, but he denied or controverted the charge made against his character and fitness, and alleged that his present wife is a moral and Christian woman, and that his condition and means are such that if the said Nora B. is placed in his care and custody she will secure good attention and moral and physical training, and the advantages of a good education, which she can not secure if she remains in the custody of the defendant; that the defendant, James W. Caley, is a man who has no wife; that he uses profane language in the presence of his family, and also uses intoxicating liquors; that he has taken said Nora B. Berkshire to places where intoxicating liquors were drank, and that he is not a fit or suitable person to have the care and custody of said child.

Upon the issues joined between the parties, the court heard the evidence, and thereupon found in favor of the defendants, and, over appellant's motion for a new trial, adjudged that he take nothing by his action and that he pay the costs of the suit, and further adjudged that Nora B. Berkshire, the girl in controversy remain in the custody of the defendant James W. Caley. The petition proceeds upon the theory that appellant as the father of the girl is entitled to have the custody and control of her, and that she is illegally held by the defendants and thereby restrained of her liberty. The principal contention of counsel for appellant is that the latter is shown by the evidence to be a suitable person to have the custody of his child and that the court erred in denying him this right. Each party examined numerous witnesses in the lower court and a great mass of evidence has been certified in this appeal, all of which we have read and considered together with the questions presented by appellant. The appellee has not favored us with a brief or any argument whatever to sustain the judgment below, and we are left wholly unaided, so far as he is concerned, to examine and consider the authorities and argument presented by counsel for appellant. This neglect is to be regretted, and meets our positive disapproval. Where a successful party in the lower court, when the case has been appealed by his adversary to this court, becomes so indifferent or derelict as to fail to prepare and file within the time allowed a brief or argument in support of the judgment assailed, such failure or default upon his part may be accepted and deemed to be a confession of the errors assigned by appellant, and this court, in the exercise of its discretion, may reverse the judgment without considering the appeal on its merits. We do not in this appeal enforce the rule here declared, but parties should be admonished in respect to its enforcement in the future and govern themselves accordingly.

The evidence when considered as a whole does not favorably impress us in respect to appellant's fitness to have the custody, control, and education of his said child; neither is it shown that her custody should have been awarded to him by the court upon the grounds that it would conduce to her future welfare or best interests. In fact the evidence in respect to the fitness of the parties to have the custody and care of the child in dispute may be said to preponderate in favor of the appellee James W. Caley. It appears that the girl at the time of the trial was nine years old and over, and that appellant and his wife, her mother, were divorced in 1897. They had two children,--said Nora B., then about seven years of age and a boy still younger. By a written agreement, into which the parties entered at the time...

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