Campbell v. Stover

• Citation: 104 S.W. 1047
• Parties: CAMPBELL v. STOVER et ux.
• Decision Date: 06 November 1907
• Court: Supreme Court of Texas

104 S.W. 1047

CAMPBELL v. STOVER et ux.

Supreme Court of Texas.

November 6, 1907.

Certified Question from Court of Civil Appeals of Second Supreme Judicial District.

Habeas corpus by George Campbell against Bud Stover and wife. Judgment for respondents, and petitioner appeals. Question certified from the Court of Civil Appeals for the Second District. Question answered.

A. J. Power and W. T. Andrews, for appellant. W. C. Veale, R. M. Ellerd, and W. P. Sebastian, for appellees.

GAINES, C. J.

This is a certified question from the Court of Civil Appeals for the Second District. The statement and questions are as follows:

"This appeal is from a judgment rendered against appellant in a habeas corpus proceeding instituted by him to recover from the appellees the possession of Ima Campbell, a girl five or six years old and his only child, who was alleged to be unlawfully restrained by them. The court not only denied him any relief, but enjoined him from disturbing appellees in their possession of the child. The litigation grows out of a most shocking and deplorable domestic tragedy, in which the wife of appellant, who was the mother of this child and three others, shot to death all but this one and wounded her, and then took her own life. The tragedy was, of course, due to insanity. `Res ipsa loquitur.' The place of the tragedy was the home of appellant, near Tucumcari, N. M., where he resides still, and the date June 13, 1905. Soon thereafter, appellees obtained possession of the child in question and brought her to their home in Stephens county, Tex., where she has been well provided for and taken care of as a member of their family ever since; appellee's wife being a sister of the child's mother. As to the nature and circumstances of the delivery of the child to the wife of appellee and to Mrs. Ellerd, another sister, who also resides in Texas and, with her husband, was present when the child was delivered, the evidence was conflicting; the testimony offered by the appellees tending to prove that appellant gave his consent for said sisters to bring the child to Texas and keep her here permanently, and that offered by appellant tending to show that the child was to be returned to him whenever he called for her. As to whether it would be better for the child to restore her to her father, or leave her with the appellees, a large volume of testimony was offered on both sides, and it appears from a recital in the judgment, there being no other finding of facts, that the court determined this issue in favor of the appellees. By numerous witnesses of high standing in Texas, who had known appellant while he lived here before he moved to New Mexico, and also by the same class of witnesses in New Mexico, who have known him there, appellant established for himself the reputation of a good citizen and a moral, sober man, who was kind to his family, and provided reasonably well for them. Two witnesses, however, a man and his wife, who had known appellant in New Mexico, testified to circumstances tending to show that at times appellant had treated his wife and children in a very rough manner, going so far on one...