Cook v. Echols
Decision Date | 17 December 1918 |
Docket Number | 8 Div. 582 |
Citation | 80 So. 680,16 Ala.App. 606 |
Parties | COOK et al. v. ECHOLS et al. |
Court | Alabama Court of Appeals |
Appeal from Probate Court, Morgan County; L.P. Troup, Judge.
Habeas corpus by G.W. and Annie Cook against Joe Echols and Ida Echols to recover the custody of George Cook, an infant. From a decree denying the prayer of the petition the petitioners appeal. Reversed and rendered.
The response to the petition was: (1) That Cook had given the child to respondents. (2) That the respondent Joe Echols had adopted said child as required by law. (3) The Cooks are not suitable persons to have the care and custody of said child and are not able to maintain and rear him. (4) The Cooks willfully abandoned said child, and such abandonment has continued for more than six months, and they have contributed nothing to the support and maintenance. (5) The said Cooks are not entitled to the possession of said child.
The trial proceeded on the petition and answer without further pleading, and there was evidence produced to support both.
Wert & Hutson, of Decatur, for appellants.
Tennis Tidwell, of Albany, and W.T. Lowe, of Decatur, for appellees.
The respondents, without in any way raising the question that in the absence of a traverse the facts stated in the answer or return must be taken as true, allowed the court to proceed with the trial of the case on the merits, as though the facts stated in the return had been properly traversed and issue joined thereon. This course operated as a waiver of formal traverse, and the case will be considered here on the merits as presented by the proof. Montgomery v. Hughes, 4 Ala.App. 245, 58 So. 113: Stewart v. Smith, 78 South. 724, and cases cited; Tyson v. Decatur Land Co., 121 Ala 414, 26 So. 507.
The effort of the respondents to adopt the child was abortive, because of a failure to observe the statutory requirement that the declaration of adoption must be acknowledged "before the judge of probate of the county of his (the declarant's) residence." Code 1907, § 5202; Prince v. Prince, 188 Ala. 559, 66 So. 27. Moreover, the proceedings authorized by the statute being purely ex parte, it is a question of serious doubt whether such a proceeding would constitute an obstacle in the way of any court of competent jurisdiction in dealing with the subject of the child's custody so as to conserve its best interest, if strict compliance with the statute had been shown. Murphree v. Hanson et al., 197 Ala. 246, 72 So. 437. While the welfare of the child is the primary consideration, "though not always controlling, in determining whether the custody assailed shall be disturbed" (Harrist v. Harrist, 151 Ala. 659, 43 So. 963), where the controversy is between the parents on one side and third parties not related by ties of blood on the other, as here, the natural ties of affection and sympathy existing between parent and child are a consideration that cannot be ignored in determining what is for the best interest of the child. We take the following from the opinion of the Court of Appeals, speaking by Simpson, J.:
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