Bonnett ex rel. Newmeyer v. Bonnett

• Decision Date: 09 June 1883
• Citation: 16 N.W. 91,61 Iowa 199
• Parties: BONNETT, EX REL. NEWMEYER, v. BONNETT ET AL
• Court: Iowa Supreme Court

16 N.W. 91

61 Iowa 199

BONNETT, EX REL. NEWMEYER, v. BONNETT ET AL

Supreme Court of Iowa, Des Moines

June 9, 1883

Appeal from Van Buren District Court.

THIS is a proceeding in habeas corpus, the petition alleging that Festusina Bonnett is restrained of her liberty by Lewis and Amanda Bonnett.The court adjudged that the defendants do not illegally restrain Festusina Bonnett of her liberty, and that she be remanded to their custody.The plaintiff appeals.

AFFIRMED.

McNett & Tisdale, for appellant.

Sloan Work & Brown, for appellees.

OPINION

DAY, CH. J.

The facts of the case as found by the court below are as follows "The relator, Mary Newmeyer, is the mother of the plaintiff, Festusina Bonnett, and the defendants, Lewis and Amanda Bonnett, are her paternal grandparents.The father of the plaintiff died in October, 1877, and she was born on the fourteenth day of April, 1878.Her mother resided with the defendants from the death of her husband and until the plaintiff was about twenty months old.She did not then permanently change her residence, but for a few weeks was at her sister's, then returned to her home; after a while she went to her uncle's, and remained some three months, then home again, then to her father's and back home again, and so on, staying awhile with one relative and then with another, but returning at short intervals to her home, as she calls it, and where her child was with its grandparents.In July, 1881, she was married to her present husband, Henry Newmeyer, and is now residing in Macon county, Missouri.The testimony shows that she and her husband are persons of excellent moral character; that they have a small, comfortable home; that he is worth from $ 3,000 to $ 5,000, is a fair business man, doing well, is highly respected by his neighbors, is thirty-one years of age, and the relator twenty-five.The testimony also shows that the defendants are very worthy people, worth from $ 30,000 to $ 35,000, having a good home, and are greatly respected by all; that they reside in Van Buren county, in this state, where they have lived a long number of years.

"The plaintiff has been with her grandparents most of the time since her birth.She will be four years old next April.The defendants and the entire family are warmly attached to her, and treat her with the utmost kindness, and are unwilling to let her go.Her mother, since her marriage and since obtaining a home of her own, desires the custody of the child, and this desire is warmly seconded by her husband.There is nothing to show that she has not a mother's love for her child; that she is not warmly attached to her, or that the child would not have a good, kind home with her mother.

"The relator made a request of the defendants for the custody of the child, which was refused.She then commenced this proceeding, suing out a writ of habeas corpus, alleging the child was illegally restrained of her liberty, etc.The defendants made return to the writ by answer, claiming that when the child was some two months old, she was given to them by her mother to raise; that they accepted the gift, and have had the care and custody of her since, that she was to remain with them until the death of her grandmother; that they have become greatly attached to her, and do not desire to surrender her custody to the relator, etc.

"The relator claims that she made no such gift or agreement with the defendants, and if she did, such an agreement, in law, would be void and not binding on her; that she is the natural guardian of said child, and is entitled to her care and custody, unless she has in some way forfeited such right by improper conduct and the like.

"The testimony, in my judgment, fully sustains the claims that the relator gave the child to the defendants to be theirs to raise, until the death of Amanda Bonnett; that they should have the care, custody and control of the plaintiff until the happening of said event.The defendants under such agreement or understanding took the child, and have well cared for her since, and are willing to care for her in the future."

Habeas corpus is prosecuted by ordinary...