Bleakley v. Smart

• Decision Date: 06 October 1906
• Citation: 87 P. 76,74 Kan. 476
• Parties: BLEAKLEY v. SMART, Judge.
• Court: Kansas Supreme Court

87 P. 76

74 Kan. 476

BLEAKLEY v. SMART, Judge.

Supreme Court of Kansas

October 6, 1906

Syllabus

An appeal will lie from a judgment of the district court in habeas corpus proceedings determining the rights of conflicting claimants to the custody of a child.

[Ed Note.-For cases in point, see vol. 25, Cent. Dig. Habeas Corpus, §§ 102-106.]

Where the district court refuses, on proper application, to grant a defeated party in a civil action a stay of proceedings under chapter 322, p. 539, Laws 1905 (Gen. St. 1905, § 5502) and after the Supreme Court has granted a stay of proceedings on the judgment refuses to act upon a motion for a new trial pending in the action, mandamus will lie to compel the judge of such court to act upon the motion.

[Ed. Note.-For cases in point, see vol. 33, Cent. Dig. Mandamus, § 97.]

Application of Charlotte E. Bleakley for writ of mandamus to Charles A. Smart, judge of the Fourth judicial district. Writ granted.

This is an original action in mandamus brought against the judge of the district court of Douglas county to obtain from him a ruling upon a motion for a new trial. The controversy involves what has become known as the “Incubator Baby Case.” The history of the events ending in the refusal of the district court to act upon the motion for a new trial is as follows: Charlotte E. Bleakley, claiming to be the mother of Edith Bleakley, an infant exhibited as one of the “incubator babies” at the St. Louis World’s Fair, brought proceedings in habeas corpus before the Honorable Emery C. Graves, circuit judge at Rock Island, Ill. A judgment was rendered in her favor on July 14, 1905, against Mr. and Mrs. Barclay, husband and wife, in which that court found that the infant, Edith, is the daughter of said Charlotte E. Bleakley and J. J. Bleakley, and was born February 15, 1904. It was further adjudged that Charlotte E. Bleakley was a fit person to have the custody and control of the child, and that it was for the best interest and welfare of the child that she be given to her mother, and that a certain deed of adoption, executed by Charlotte E. Bleakley to the Barclays, by the terms of which the Barclays claimed to be entitled to her possession and custody, be set aside and canceled as void. The Barclays were ordered to deliver possession of the child to Mrs. Bleakley, who afterwards returned with it to her home in Lawrence, Kan. About two months later, on September 5, 1905, the Barclays brought proceedings in habeas corpus in the district court of Douglas county, setting up that they were citizens of Rock Island county, Ill., and that the child, Edith, was unlawfully restrained of her liberty by reason of a judgment of the circuit court of Rock Island county, which judgment they alleged was obtained by Charlotte E. Bleakley on account of her falsely and fraudulently pretending to be the child’s mother, and setting up in general terms the Illinois judgment, and averring that the relators had first learned the truth in reference to the child’s parentage a short time previous to the making of their application. Mrs. Bleakley moved to quash the writ upon the ground that it was an attempt by collateral attack to impeach a final judgment of a court of competent jurisdiction; and that to do so would amount to a refusal to give full faith and credit to the judicial proceedings of another state, and because the petition of the Barclays failed to allege that any change had taken place in the condition and surroundings of the child since the former judgment. The motion to quash being denied, a return to the writ was made, setting up in full the record of the Illinois judgment, and, in addition, the same grounds of defense relied upon in the motion. At the trial the district court decided that the proceedings in Illinois were not res judicata, and that the only question involved in the Illinois case was the question of the validity of the deed of adoption, and on January 25th, after a hearing lasting more than a week, adjudged that Charlotte E. Bleakley was not the mother of the child, that the relators were entitled to her care and custody, and that it was for her best interest that she should be given into their care and control. It was adjudged that the child should be delivered immediately to the Barclays, upon their execution of a bond to the respondent in the sum of $4,000, conditioned that the relators should produce the child within the court’s jurisdiction in case the Supreme Court should modify, vacate, or reverse the decree of the district court. A special execution was directed to issue commanding the sheriff to forthwith enforce the decree, and turn over the child to the relators. Thereupon Mrs. Bleakley filed a motion for leave to give a bond to stay proceedings, under Laws 1905, p. 539, c. 322, until the case could be brought to this court. The court denied her motion and refused to fix the amount of a supersedeas bond or to permit her to give one. She then filed a motion for a new trial, but this motion the court continued until the next term. She then renewed her application for leave to give a bond to stay proceedings, pending an appeal, which was again denied. Exceptions were saved to the several rulings of the court. During all these proceedings Mrs. Bleakley was present with the child, but at 4:30 o’clock in the afternoon, when her last application for a stay was refused, she left the courtroom, taking the child with her. A half hour later the Barclays filed their $4,000 bond and the special execution was issued and placed in the hands of the sheriff. In the meantime Mrs. Bleakley had disappeared, and it afterwards developed that she had taken a train and gone with the child to Moline, Ill., the home of the Barclays, and in the county where the judgment in her favor had been rendered. On February 17, 1906, a verified motion was presented to the district court on behalf of the Barclays, reciting the facts in regard to the removal of the child from the jurisdiction of the court, and asking that Mrs. Bleakley be required to bring herself and the child within the jurisdiction of the court, or, in default, that she be adjudged guilty of contempt, and that her motion for a new trial be stricken from the files. On March 3, 1906, the court heard the motion and adjudged that Mrs. Bleakley by her action in willfully removing the child from the court’s jurisdiction was then, and from the 25th day of January had been continuously, in open contempt of court. It was ordered that the motion for a new trial be set for hearing on the 30th day of March and would be heard on that day, providing Mrs. Bleakley produced the child in open court at that time, but that, in default of so doing, the motion to strike from the files would be sustained. In the meantime a transcript of the proceedings was brought to the Supreme Court, together with a petition in error, and this court on March 21st granted a supersedeas, staying the issuance of any execution upon the judgment upon a bond in the sum of $500, which was duly filed and approved. On March 30th Mrs. Bleakley filed a petition in the district court of Douglas county to modify the journal entry of March 3d, setting up the granting of the supersedeas by the Supreme Court, and asking to be permitted to purge herself of contempt and to be allowed to argue her motion for a new trial. All of these motions were by the court denied, the court holding that Mrs. Bleakley was still in contempt of court, and that inasmuch as it appeared that since the judgment and order of March 3d she was then prosecuting proceedings in error in the Supreme Court, and inasmuch as the Supreme Court had assumed jurisdiction of the cause and was then exercising it, the court declined to hear her application. Again, on April 21st, at the next term of the district court, the attorneys for Mrs. Bleakley made another attempt to have the court hear her petition to modify the order of March 3d and to be permitted to save their exceptions to the ruling of the court, which applications were refused, the court declining to state whether the motion for a new trial was or was not still upon the docket, or to make any order with reference to the case. The court stated: “I simply say what I have said before, that so long as the respondent in this case is in contempt, keeps the child beyond the jurisdiction of the court, and is prosecuting an appeal in error in the Supreme Court, I will decline to act upon any motion or application of hers.” Thereupon these proceedings in mandamus were begun to compel the judge of the district court to act upon the motion for a new trial.

E. F. Ware, W. B. Brownell, and J. Q. A. Norton (Gleed, Ware & Gleed, of counsel), for plaintiff.

J. H. Atwood and Bishop & Mitchell, for defendant.

OPINION

PORTER, J.

Numerous contentions are made in regard to the principles of law which it is said are involved in this controversy. Only a few of them in our view need be decided.

1. It is contended by defendant that the judgment of the district court is not appealable, and that therefore this court was without authority to grant a supersedeas staying execution of the judgment, and lacks jurisdiction to order the court below to act upon the motion for a new trial. It is said that no motion for a new trial was proper; that the district court has concurrent jurisdiction with the Supreme Court in habeas corpus; that no provision is made by statute authorizing an appeal from a judgment or decision in habeas corpus; and that the weight of authority is to the effect that, independent of any statutory provision, an appeal will not lie. Manifestly the...