Brooke v. Logan

• Decision Date: 22 October 1887
• Citation: 13 N.E. 669,112 Ind. 183
• Parties: Brooke v. Logan.
• Court: Indiana Supreme Court

112 Ind. 183

13 N.E. 669

Brooke

v.Logan.

Supreme Court of Indiana.

October 22, 1887.

Appeal from circuit court, Marshall county; Josiah Conner, Judge.Chas. Kellison, for appellant. A. C. Capron, for appellee.

Zollars, C. J.

Appellant instituted this proceeding of habeas corpus against appellee, to recover from him the custody of his (appellant's) daughter, nearly five years of age. He seeks her custody upon the ground that he is her father, and has a good home for her, and that he and his wife, who is a second wife without children, are suitable persons to be intrusted with her custody, care, and education. He alleges in his petition, among other things, that, notwithstanding his demand upon appellee, he has refused to surrender the custody of the child. In his return to the writ appellee states the several grounds upon which he claims the custody of the child as against appellant, which may be summarized as follows: (1) When the child was a mere babe, appellant placed her in the care and custody of appellee and his wife, who is a relative of the child. After she had been with them for about a year, appellant gave up and surrendered to them her care and custody so long as she should remain a minor. (2) At appellant's request, and to carry out the agreement as to the custody of the child, appellee made the proper application, and was duly appointed the guardian of her personal estate. (3) Prior to the commencement of this proceeding, appellant made application to the court for the removal of appellee, and for the appointment of himself in his stead, as such guardian of the person and estate of the child, stating in his application the same facts as the basis of his right to the custody of the child as are stated in his petition in this case. Appellee appeared to the application, and, after hearing evidence, the court found against appellant, and refused to remove appellee, or to appoint him such guardian of the person and estate of the child. The judgment of the court in that case is yet in full force. (4) “The petitioner is not a fit and suitable person to have the care and custody of the child.”

We examine the grounds upon which appellee claims the custody of the child in the order above stated.

1. The placing of the child in the care and keeping of appellee, and the verbal agreement by appellant that he might have her care and custody during her minority, did not, of themselves, estop appellant from thereafter reclaiming that custody. The rulings of this court have been uniform upon that question, and in accord with authority in England and most of the United States. It will be sufficient here to cite some of the authorities, without extending this opinion to state the reasons upon which they rest. Dalton v. State, 6 Blackf. 357;State v. Banks, 25 Ind. 495;Wishard v. Medaris, 34 Ind. 168;Child v. Dodd, 51 Ind. 484;Copeland v. State, 60 Ind. 394;Johns v. Emmert, 62 Ind. 533;McGlennan v. Margowski, 90 Ind. 150;McKenzie v. State, 80 Ind. 547;Lee v. Back, 30 Ind. 148; Schouler, Dom. Rel. § 251, and cases there cited; Church, Hab. Corp. § 428.

2. The appointment of appellee as guardian of the person and estate of the child did not, of itself, deprive appellant, as the father, of her custody. Section 2518, Rev. St. 1881, is as follows: “Every guardian so appointed shall have the custody and tuition of such minor, and the management of such minor'sestate during minority, unless sooner removed or discharged from such trust, provided, that the father of such minor (or, if there be no father, the mother, if suitable persons, respectively,) shall have the custody of the person, and the control of the education of such minor.” If the father is a suitable person, he has a right to the custody of his infant child as against the statutory guardian. So the statute declares, and so it has been held. Garner v. Gordon, 41 Ind. 92, (104;)Johns v. Emmert, supra; Bryan v. Lyon, 104 Ind. 228, 3 N. E. Rep. 880; State v. Baldwin, 5 N. J. Eq. 454;State v. Clover, 16 N. J. Law, 419; State v. Nachtwey, 43 Iowa, 653;People v. Mercien, 3 Hill, 399;Regina v. Smith, 16 Eng. Law & Eq. 221; State v. Smith, 6 Greenl. 462;Pool v. Gott, 14 Law Rep. 269.

In order that the appointment of a statutory guardian may be conclusive as against the father's right to the custody of his child, it must in some way appear that he was in court in such manner that the court, in appointing the guardian, must have passed upon the question of his fitness to have such custody. Such is not the case here.

3. Appellant's counsel pass this third ground upon which appellee claims the custody of the child with the remark that the doctrine of res adjudicata does not apply to habeas corpus proceedings. In that counsel are very clearly mistaken. The question of the custody of a minor child, once properly and finally adjudicated, whether in a habeas corpus proceeding or otherwise, is settled for all time, unless there be an appeal; and the judgment rendered is impregnable as against a collateral assault. A subsequent writ may be awarded, but, upon the subsequent hearing, evidence will not be heard which goes back of the previous adjudication. Mercein v. People, 25 Wend. 64; Freem. Judgm. § 324; Church, Hab. Corp. § 387, and cases there cited; Dubois v. Johnson, 96 Ind. 6, (14;) Tyler, Inf. 291; People v. Mercien, supra. We think, however, that the adjudication upon appellant's application to have appellee removed, and himself appointed guardian of the child, is not conclusive as against this proceeding. These tests have been applied in determining whether or not the cause of action in the two cases is the same, and whether therefore, an adjudication in one is a bar to the other. In the case of Taylor v. Castle, 42 Cal. 367, (372,) it was said: “The cause of action is said to be the same where the same evidence will support both actions; or, rather, the judgment in the former action will be a bar, provided the evidence necessary to sustain a judgment for the plaintiff in the present action would have authorized a judgment for the plaintiff in the former.” That the cause of action in two cases is the same, is a test by which it is determined that an adjudication in one is a bar to the other. Herm. Estop. §§ 106, 107, 111; Kalisch v. Kalisch, 9 Wis. 529;Stowell v. Chamberlain, 60 N. Y. 272. In the case of Veeder v. Baker, 83 N. Y. 156, (160,) it was said that a cause of action may be said to be composed of the right of the plaintiff, and the obligation, duty, or wrong of the defendant, and that it is sufficiently accurate to say that these combined constitute the cause of action.

Applying those tests, it cannot be said that the judgment of the court in refusing to remove appellee, and appoint appellant as guardian, is a bar to this proceeding. In that proceeding what might be called the right of the plaintiff was the right to have appellee removed and himself appointed guardian of the person and estate of the child in his stead. In this proceeding, the right asserted on the part of the plaintiff is simply the right to have the custody...