Bleakley v. Ux

• Decision Date: 06 April 1907
• Docket Number: 14,866
• Citation: 75 Kan. 462,89 P. 906
• Parties: CHARLOTTE E. BLEAKLEY v. JAMES G. BARCLAY et ux
• Court: Kansas Supreme Court

89 P. 906

75 Kan. 462

CHARLOTTE E. BLEAKLEY v. JAMES G. BARCLAY et ux

No. 14,866

Supreme Court of Kansas

April 6, 1907

Decided January, 1907.

Error from Douglas district court; CHARLES A. SMART, judge.

STATEMENT.

THIS appeal from a judgment of the district court in habeas corpus for the possession of a child involves the merits of the "incubator baby case." A part of the controversy was before the court in Bleakley v. Smart, 74 Kan. 476, 87 P 76. That was an action of mandamus to compel the trial judge to rule upon a motion for a new trial. The motion having been denied, the respondent brings the case here for review.

Some of the history of the case is set forth in the recital of facts in the mandamus case, which, however, it is necessary to supplement. James G. Barclay and Stella Barclay, the petitioners, are husband and wife. Their petition, which was filed in the district court of Douglas county September 5 1905, alleged that Charlotte E. Bleakley had recovered the child from them by means of a former habeas corpus proceeding in Illinois, and that the judgment in that action was obtained through the perjury and fraud of witnesses. The Barclays asked for the return of the child. There was no statement in the petition that there was any change in the conditions or circumstances affecting the child, that the Illinois judgment had been reversed, or that it was not in full force and effect. The principal parts of the petition follow:

"Come now your petitioners, James G. Barclay and Stella Barclay and respectfully show that they are citizens of the county of Rock Island and state of Illinois, and are husband and wife; that one Edith Stanley, born at St. Louis, in the state of Missouri, on the first day of March, A. D. 1904, is unlawfully restrained of her liberty by one Charlotte E. Bleakley, in the city of Lawrence, Douglas county, Kansas; . . . that the said Edith Stanley is unlawfully restrained of her liberty, according to the best of the knowledge and belief of these applicants, by reason of a judgment of the circuit court of the county of Rock Island and the state of Illinois, which judgment was obtained by the said Charlotte E. Bleakley on account of her falsely and fraudulently pretending and swearing to be the true mother of the said Edith Stanley; . . . that up to the time of the filing of a certain petition in habeas corpus by the said Charlotte E. Bleakley, on or about the 26th of May, 1905, there was no person who knew that said child was not born unto your petitioners except the parties aforesaid, and that up until that time the said Charlotte E. Bleakley paid no attention to said child, neither did she have the same in her care or custody; that shortly thereafter, and on or about the 26th day of May, 1905, a writ of habeas corpus was issued out of the circuit court of Rock Island county, Illinois, and certain proceedings had in reference thereto in which the said Charlotte E. Bleakley was the petitioner and the said petitioners hereto were respondents, and the determination thereof was in substance and effect that the said Charlotte E. Bleakley was entitled to the possession of the said child, Edith Stanley, said decision being based upon the determination by said court that the deed of adoption aforesaid was illegal and void; that after the rendition of said judgment, and shortly before the making of this application, these petitioners, for the first time, learned that the absolute truth in reference to the parentage of said child was that it was not the offspring of the said Charlotte E. Bleakley. . . . Your petitioners further aver and show to the court that the said Charlotte E. Bleakley well knew that the said child so born to her was dead at the time of its birth, and well knew that the said infant, Edith Stanley, was not her child at the date of the filing of her said application for a writ of habeas corpus, and that the said child, Edith Stanley, was the child of some other woman; that all of said facts were known by the said Charlotte E. Bleakley during all of the trial of the aforesaid application for the custody of said infant, at which time the said Charlotte E. Bleakley well knew that your petitioners were ignorant of the true parents of the said child; . . . and that she is guilty of the crime of perjury in that she testified in a court of competent jurisdiction under oath that she was the mother of said child, Edith, when as a matter of fact she then and there knew that such was not the case. . . . These petitioners direct the court's attention to the fact that circumstances are here presented unknown to the said circuit court of Rock Island county and unknown to these petitioners at the time of the hearing upon said writ of habeas corpus in Rock Island county, to wit, that the child is not the child of Charlotte E. Bleakley, as was then and there believed by all of the parties interested and by the court, except the said Charlotte E. Bleakley. . . . Wherefore, your petitioners pray that a writ of habeas corpus be issued."

Mrs. Bleakley filed a motion to quash the writ on the grounds: (1) That the petition failed to state facts sufficient to constitute a cause of action; (2) that the matter was res judicata, and the Illinois judgment could not be collaterally attacked; (3) that under the federal constitution full faith and credit must be given to the Illinois judgment; (4) that the Illinois judgment had, by finding that Mrs. Bleakley was the mother of the child, settled the controversy; (5) that the petition failed to allege any change in the condition of the child or its surroundings since the rendition of the judgment in Illinois. The motion to quash was denied. Respondent then pleaded a complete transcript of the record of the proceedings in Illinois, and denied the other allegations of the writ.

A reply was filed by the Barclays, in which it was alleged that the judgment in Illinois was obtained by fraud and perjury, and that on the trial of the case the question of motherhood was not raised; also that the question whether Mrs. Bleakley was a fit and proper person to have the custody of the child was not raised. It was alleged that the portion of the Illinois judgment wherein the court found the respondent to be the mother of the child was absolutely void and illegal, for the reason that the parentage of the child was not an issue, and the only issue before the court was whether or not a certain deed of adoption was legal or illegal. It should be stated that the Barclays in their defense to the writ in the Illinois suit based their claim of right to the possession of the child upon a deed of adoption executed by Charlotte E. Bleakley as the child's mother.

Upon the settlement of the issues the case was tried before the Honorable Charles A. Smart, at the January, 1906, term of court. An objection to the introduction of any testimony was overruled.

At the conclusion of the trial, which occupied several days, the court rendered judgment for the petitioners: that the respondent is not the mother of the child, that the petitioners are entitled to its custody, and that the child's best interests require that it be given into their keeping. The judgment ordered that the possession of the child be given to the Barclays immediately upon their executing a bond in the sum of $ 4000, conditioned that they would produce the child within the court's jurisdiction in case the judgment was reversed, vacated or modified by the trial court or by the supreme court.

The respondent prosecutes this proceeding, and assigns the following errors: (1) Denying the motion to quash the writ; (2) refusing to give full faith and credit to the Illinois judgment, as required by section 1 of article 4 of the constitution of the United States; (3) permitting the Illinois judgment to be collaterally impeached; (4) permitting testimony to be introduced under the petition.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. JUDGMENTS--Impeachment by a Party--Collateral Proceeding. A party to a judgment cannot impeach or set it aside in a collateral proceeding on the ground that it was obtained by perjured testimony.

2. JUDGMENTS--Res Judicata. Upon a plea of former adjudication a matter will be held res judicata, although not raised as an issue by the pleadings in the former action, if from the record it appears that it formed one of the premises upon which the judgment necessarily rested.

3. JUDGMENTS-- Habeas Corpus--Custody of a Child. Where the rights of conflicting claimants to the custody of a child are involved and determined in habeas corpus proceedings the judgment is binding and conclusive, and bars subsequent proceedings by a party thereto upon the same state of facts.

4. CONSTITUTIONAL LAW--Foreign Judgment--Full Faith and Credit. A judgment rendered by a superior court of another state having jurisdiction of the parties and the subject-matter will be given in this state the same faith and credit to which it is entitled in the state where it was rendered.

5. CONSTITUTIONAL LAW--Res Judicata. A judgment rendered in the circuit court of Illinois in habeas corpus for the custody of a child is res judicata and cannot be questioned by a party thereto in subsequent proceedings brought in a court in this state upon the same state of facts.

6. PRACTICE, SUPREME COURT--Review of Ruling on a Motion to Quash. A motion to quash the writ in habeas corpus amounts to a demurrer, and if denied and excepted to any error in the ruling may be urged on appeal, although issues were joined and trial had, provided the proceeding is one which is appealable.

E. F Ware, J. Q. A. Norton, and W. B. Brownell, for plaintiff in error.

John H Atwood, and Bishop & Mitchell, for defendants in error...