Bullock v. Robertson

• Decision Date: 28 October 1902
• Citation: 65 N.E. 5,160 Ind. 521
• Parties: BULLOCK v. ROBERTSON et al.
• Court: Indiana Supreme Court

160 Ind. 521

65 N.E. 5

BULLOCK

v.ROBERTSON et al.^*

Supreme Court of Indiana.

Oct. 28, 1902.

Appeal from superior court, Marion county; John L. McMaster, Judge.

Habeas corpus by Henry W. Bullock against William Robertson and others. Judgment for defendants, and plaintiff appeals. Affirmed.

Frank McCray and George W. Spahr, for appellant. Wm. T. Brown, for appellees.

MONKS, J.

This was a habeas corpus proceeding brought by appellant against his wife, Jessie R. Bullock, and his wife's father and mother, William and Roxana Robertson, to obtain the possession of an infant child of appellant and said Jessie, aged four years. Appellees William and Roxana Robertson filed a return to said writ, and Jessie R. Bullock filed a separate return. Appellant filed exceptions to said returns, which were overruled by the court. A hearing of said cause resulted in a judgment awarding the custody of said child to appellee Jessie R. Bullock. Appellant insists that the action of the court in overruling his exceptions to said returns was erroneous.

It is settled law in this state that where there is a controversy in a habeas corpus proceeding or in a suit in equity for the custody of a child, whether between the father and mother, or between them, or either of them, and third persons, the welfare of the child is paramount to the claim of either parent, and the order of the court should in all such cases be made with regard to the best interests of the child. It is reasonable and just that the courts should have this power, for the benefit of the infants. Their custody should not depend on the accident of possession, but to whom should it be intrusted for its own good and that of society. Palin v. Voliva (Ind. Sup.) 63 N. E. 760;Leibold v. Leibold (Ind. Sup.) 62 N. E. 627;Berkshire v. Caley, 157 Ind. 1, 8, 60 N. E. 696, and cases cited; Schleuter v. Canatsy, 148 Ind. 384, 388, 47 N. E. 825, and cases cited; Hussey v. Whiting, 145 Ind. 580, 582, 44 N. E. 639, 57 Am. St. Rep. 220;McShan v. McShan, 56 Miss. 413; Hoch. Inf. (3d Ed.) §§ 42, 43, 46-49; Church, Hab. Corp. (2d Ed.) §§ 425, 437c, 439-443; Hurd, Hab. Corp. (2d Ed.) § 6, p. 473 et seq.; 15 Am. & Eng. Enc. Law (2d Ed.) 185-187; 17 Am. & Eng. Enc. Law (1st Ed.) 365-371. Under the rule established in this state, and by the authorities cited, the father is not entitled, as a matter of course, to an order, on the return to a writ of habeas corpus, that the mother or other person in possession of the child shall deliver it to him; but the courts will exercise a sound discretion, for the benefit of the child, in disposing of its custody. When an infant is brought into court in obedience to a writ of habeas corpus, it is in the custody of the court, subject to its disposition, and this power rests upon the broad foundation of the general jurisdiction of the court over infants. The power...