Bryan v. Lyon

• Decision Date: 17 December 1885
• Docket Number: 12,352
• Citation: 3 N.E. 880,104 Ind. 227
• Parties: Bryan v. Lyon et al
• Court: Indiana Supreme Court

3 N.E. 880

104 Ind. 227

Bryan v. Lyon et al

No. 12,352

Supreme Court of Indiana

December 17, 1885

From the Vanderburgh Superior Court

The judgment is affirmed, at appellant's costs.

S. B Vance, for appellant.

J. M Shackelford and A. L. Doss, for appellees.

OPINION

Zollars, J.

By a proceeding of habeas corpus, appellant seeks to recover the custody of his two children; one of whom, a little boy ten years old, is in the custody of appellee Lyon and the other, a little girl eight years old, is in the custody of appellee Ferguson. He filed a separate complaint against each of the appellees. The cases were put at issue and, by the agreement of the parties, tried together and come here, practically, as one case. He alleged in his complaint, that on the 2d day of April, 1874, he and Sallie R. Lyon, who is now dead, were married; that the two children were born of that marriage, and that appellees wrongfully have and retain them in their custody.

A writ was awarded, and appellees jointly and separately made returns thereto. For the purposes of this decision we need only set out the separate return by Lyon. It is as follows:

"The defendant John C. Lyon amends his return to the writ herein, and for amendment says that he has the child George V. Bryan, mentioned in said writ, present in the court room; that it is as the statutory guardian, and also as the uncle of said child, George V. Bryan, this respondent has the lawful and rightful custody of said child.

"He says that said John Bryan, because of the facts hereinafter set forth, is not entitled to, nor ought he to have the custody of said child; that from the time of the birth of said child, the said John Bryan virtually abandoned the child and its mother. The facts are these: That on the 3d day of April, 1874, said John Bryan married Sarah Lyon, who was the sister of this respondent; that there were two children born to the marriage, namely, the said George V. Bryan, who is now about ten years of age, and Sarah Ella Bryan, aged about eight years; that thereafter, to wit, on the 14th day of January, 1878, said Sarah Bryan, who had been a good, true and faithful wife, was compelled to and did, for the reasons set forth in her petition, bring a suit against said John Bryan in the superior court of Vanderburgh county, Indiana, for a divorce from the said John Bryan; that, among other things she alleged as the grounds for a divorce, were the following: That said John Bryan had, during the three years and a half past, wholly failed, refused and neglected to furnish or provide the necessaries of life for herself and children; that said John Bryan was wholly unfit and unsuitable to be entrusted with the care and custody of said children, owing to his utter worthlessness and failure to provide for his said family; that she had, since the birth of her children, herself provided for them and furnished both her children and herself with the necessaries of life.

"To that petition the said John Bryan, though duly and legally summoned by the sheriff of the county, the summons being served upon him personally for more than ten days before the first day of the term at which said cause was set down for trial, made default, and thereby admitted the truth of all the allegations in said petition contained; that on the 5th day of February, 1878, the said cause came on for trial, and said Sarah Bryan made proof of the truth of all the allegations in her said petition to the satisfaction of the court, and thereupon the court rendered its decree, granting to said Sarah Bryan a divorce from the said John Bryan, and also made an unconditional and absolute decree of the care, custody, education and guardianship of said two children, George V. Bryan and Sarah Ella Bryan, to the mother, Sarah Bryan, and giving judgment against said John Bryan for the costs therein, which amounted to seven dollars, and which, at the time of his obtaining the writ herein, remained wholly unpaid. That his sister, Sarah Bryan, after obtaining said divorce and the custody of her two children, continued by her efforts, she being a teacher in the public schools, to support and maintain herself and her two children until the 29th day of August, 1884, when she lost her life in the steamboat disaster on the Ohio river, between Evansville, Indiana, and Henderson, Kentucky; that it was her often expressed wish that in case of her death the said John Bryan should not have the custody of her two children, nor either of them, but she wished them to remain in the custody of her own relations.

"Your respondent further shows, that at the time said Sarah Bryan lost her life, the said John Bryan was, and had been for several years previous, and he is now a non-resident of the State of Indiana; that he had abandoned said children; that he had married another woman, by whom he had one child, now living with its mother's relatives, the mother being dead; that on the 3d day of October, 1884, this respondent was, by the circuit court of Vanderbargh county, Indiana, the same county in which said children lived and in which they owned some personal property, duly and legally appointed the guardian of the persons and property of both of said children. He files herewith, as part hereof, his letters of guardianship. He further says he has the child, George V. Bryan, living with him, at his residence, in the city of Evansville, Indiana, as a member of his own family; that the respondent and his wife are both attached to said child, and the child is also attached to them; that he and his wife are able and fitted to rear and educate said child, and that they will do so, treating the child as they do their own children; that the child, Sarah Ella Bryan, is at the home of James R. Ferguson and his wife, Ella Ferguson, who was a sister of the deceased mother, and the aunt of the child; that Ferguson and his wife are competent, able and well fitted to have the custody of said child, Sarah Ella; that they have taken her as a member of their own family, and they will rear and educate her as one of their own children; that the child is greatly attached to them, and she is decidedly opposed to going into the custody of said John Bryan. He further says that said John Bryan is now a widower; that he has no home of his own; that he is a travelling salesman; that if he were given custody of said children he would take them out of the State of Indiana and place them at the house of his father, who is also a widower, with two sisters of the said Bryan, who are utter strangers to said children; that said John Bryan is comparatively a young man yet; that he has already been married twice, and there is a strong probability that he will marry another woman; that both of said children are now comfortably and happily situated; that they are both unwilling to go with said John Bryan, and leave behind them their mother's relations, who are now, and will continue to care for and educate them; that said John Bryan has no right in either law or morals to the custody of said children, or either of them."

Appellant excepted to each return, upon the ground that they and each of them are insufficient. His exceptions were overruled, and he excepted. That ruling is one of the grounds upon which he asks a reversal of the judgment.

His counsel rests his argument, in the main, upon section 2518, R. S. 1881: "Every guardian * * * shall have the custody and tuition of such minor, and the management of such minor's estate 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."

The contention is that under this statute the father is entitled to the custody of his children, as against appellees, unless shown to be an unsuitable person; that the burden is upon them to show that fact, and that they have not shown it in the return made to the writ. Without deciding whether or not, in his petition or complaint, the father must allege that he is a suitable person to have the custody of his children, or whether or not those claiming the custody against him must allege and show that he is not a suitable person, we think that the return states such facts upon that subject as justified the court in refusing to strike down the return and in putting the parties to the proof. It is charged in the return that appellant ought not to have the custody of the children, because, from the time of their birth, he had virtually abandoned them and their mother; that she instituted a suit for divorce in 1878, when the younger child was very young, alleging in her complaint such abandonment and failure to provide the necessaries of life for her and the children, and that on account of his utter worthlessness, he was unfit to have the custody of the children. It is further alleged in the return, that after proper notice, appellant, by his default, allowed those charges to go as confessed, and allowed the custody to be awarded to the mother; that from that time, in February, 1878, until the mother's death, in August, 1884, she supported the children by teaching school, without any aid or care from appellant; that in the meantime he had married another woman, by whom he had one child, now living with its mother's relatives, she being dead; that he has no home of his own; that he is a travelling salesman; that if given the custody of the children he will take them out of the State, and place them with his two sisters, who are utter strangers to them and live with their father in Missouri, who is also a widower.

These several statements in the return, in connection with the other...