Bruno, Application of

• Decision Date: 20 December 1950
• Docket Number: No. 32810,32810
• Citation: 45 N.W.2d 178,153 Neb. 445
• Parties: Application of BRUNO. BRUNO v. FISCHER et al.
• Court: Nebraska Supreme Court

Page 178

45 N.W.2d 178

153 Neb. 445

Application of BRUNO BRUNO v. FISCHER et al.

No. 32810.

Supreme Court of Nebraska.

Dec. 20, 1950.

Syllabus by the Court.

1. In a habeas corpus action involving the custody of a child, where respondents failed to file a return before hearing began on the merits but did so before petitioner's case-in-chief was concluded, and petitioner made no objection to the lack of a return or to the right of the parties to proceed and the right of the court to hear and determine the matter, the failure to file the return was not such a defect as to render the hearings and judgment invalid.

2. In the return to a writ of habeas corpus facts must appear which warrant restraint of the relator.

3. Upon appeal the same cause must be presented in this court that was tried in the court below. If an issue is there tried by both parties, and without objection from either that the issue is not sufficiently pleaded, such objection will not be considered in this court as ground for reversal.

4. The writ of habeas corpus is not a corrective remedy and is never allowed as a substitute for appeal or proceedings in error for the purpose of reviewing mere errors or irregularities in the proceedings of a court having jurisdiction over the person and the subject matter.

Ralph R. Bremers, Omaha, for appellant.

Leary & Leary, Omaha, for appellees.

James J. Fitzgerald and Joseph P. Inserra of Omaha, amici curiae.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.

SIMMONS, Chief Justice.

This is an appeal from an order denying an application for a writ of habeas corpus. We affirm the judgment of the trial court.

The general factual situation is as follows:

Petitioner, Rose Bruno, on a promise of a future marriage, lived with a man for some months. During the spring of 1948, she consulted a physician, who advised her that she was pregnant and referred her to The Catholic Charities. That organization arranged for her medical care and hospitalization.

On February 20, 1949, the child Rosemary was born. The petitioner saw her once at the hospital. The mother was discharged from the hospital four days after the child's birth. The child remained in the hospital for two weeks when, with petitioner's consent, she was placed in St. James Orphanage. Petitioner testifies that she saw Mary C. Neugent, one of the respondents and an employee of The Catholic Charities, approximately every two weeks thereafter. That is denied by Miss Neugent. In any event, there were discussions about the future of the child. Successful treatment was had to correct a deformity of the child's feet. Petitioner did not pay any of these expenses and never saw the child again until September 1949. At that time she saw the child for several minutes at the orphanage. On September 23, 1949, after an extended discussion of the situation, both as to herself and as to the child, she signed a relinquishment of the child to The Catholic Charities of the Archdiocese of Omaha, Inc., and consented to the adoption of the child. This was acknowledged before a notary public.

Petitioner undertook to testify that she did not understand what she was doing, but it is patent from a reading of the testimony that she knew fully. She told her mother that evening, she became despondent and regretted what she had done.

During the next two or three days petitioner, her sister, and her mother undertook to secure a 'withdrawal' of the relinquishment. On October 15, 1949, a hearing was had in the district court for Douglas County in an action entitled 'An Inquiry into the Case of Bruno, Rosemary.' No pleadings appear in the record. It is suggested that this action was either contemplated or pending prior to the relinquishment signing. In any event, it proceeded after those events. Summons was served on the petitioner and she appeared with her attorney. As a result of that proceeding, the trial court entered the following order on that day: 'Submitted on Petition and Evidence. Mother having been duly served as provided for by law and being present in Court and represented by Counsel, Mr. Harold Hunt, Atty. Charges of dependency as set forth in the Petition are found to be true. Said Rosemary Bruno is ordered placed in the care and custody of the Catholic Charities of the Archdiocese of Omaha, Inc., a child placing agency, as guardian, for placement or adoption.'

Thereafter on November 16, 1949, petitioner filed her application for a writ of habeas corpus for Rosemary Bruno, a minor. In it she alleged that she was the mother of Rosemary and entitled to her care, custody, and control; that the Reverend Floyd Fischer was the executive director of The Catholic Charities and St. James Orphanage; the Mary C. Neugent was an employee of The Catholic Charities; that Mary C. Neugent had fraudulently and unlawfully obtained the care, custody, and control of the child and had it in St. James Orphanage, and that she and the Reverend Floyd Fischer refused to turn the child over to her; that Mary C. Neugent and St. James Orphanage claimed the child by virtue of 'certain papers' which purportedly relinquished the child; that petitioner had signed as a result of misrepresentation and fraud; that The Catholic Charities and the orphanage claimed the custody because of claims for money for the child's care; and that they had no right to the child. Petitioner prayed for a writ granting her the care, custody, and control of the child. A writ was issued and served, returnable December 1, 1949. On that day the cause was called for trial. There was an appearance of counsel for petitioner and respondents.

The parties stipulated that they would waive the presence of the child, and that the child should be subject to the orders of the court. Petitioner then testified on direct examination. At its close the court, apparently on its own motion, adjourned the case to December 12, 1949.

On December 6, 1949, an answer was filed by St. James Orphanage, the Reverend Floyd Fischer, and Mary C. Neugent, in which they alleged the cause for their custody to be (1) that on February 28, 1949, petitioner surrendered the custody of the child to St. James Orphanage and that it has since had it; (2) that petitioner had abandoned the child since that date; (3) that on September 23, 1949, she relinquished the child for adoption to The Catholic Charities, which is the agent of St. James Orphanage; and (4) that on October 15, 1949, the district court had ordered the child placed in the care and custody of The Catholic Charities, as guardian, for placement of adoption.

On December 12, the trial proceeded with both petitioner and respondents offering evidence. The trial court entered an order denying the writ. Motion for a...