Cormack v. Marshall

• Decision Date: 24 October 1904
• Citation: 71 N.E. 1077,211 Ill. 519
• Parties: CORMACK v. MARSHALL.
• Court: Illinois Supreme Court

211 Ill. 519

71 N.E. 1077

CORMACK

v.MARSHALL.

Supreme Court of Illinois.

Oct. 24, 1904.

Habeas corpus on petition of Joseph M. Cormack to obtain the custody of his infant son Kimball James Marshall Cormack from the custody of Thomas Marshall. Writ denied.

Wilkin, Cartwright, and Scott, JJ., dissenting.

A. D. Early, for petitioner.

Carnes, Dunton & Faissler and Cliffe & Cliffe, for respondent.

RICKS, C. J.

This is an original proceeding in this court upon a writ of habeas corpus issued upon the petition of Joseph M. Cormack for the custody of his infant son, Kimball James Marshall Cormack, in which it is alleged that said son is illegally detained by the respondent, the grandfather of said child. The respondent, by his return, admits the possession of the child, and avers that he is legally entitled to have and keep said child in his custody by virtue of an order of the circuit court of De Kalb county entered at the October term, 1903, of said court, upon a habeas corpus proceeding by the petitioner in this cause against this respondent for the custody of this same child; that upon a writ, return, traverse, and full hearing upon both the facts and law before said court, it was found that it was for the best interests and welfare of said child that the respondent have the care, custody, and control of him, and it was so ordered; and that said child was remanded to the care, custody, and control of the respondent. The petition, return, and record of said former proceeding are set out in the return in haec verba, and it is further averred therein that ‘there has been no change in the situation of said child, or the circumstances governing and controlling the question as to the right of his custody, since said hearing and order in said circuit court,’ and said former proceeding and order are pleaded in bar as res judicata. Respondent also reasserts and repleads the facts and circumstances set forth in his return to the former writ, wherein are stated at large the circumstances under which said child first came into his custody and control, and why he did retain, and deemed himself still entitled to retain, said child. Petitioner answers the return as made to the writ in this court and admits the proceedings had in the circuit court; does not deny that there has been no change in the conditions, etc., as they existed at the time of the former suit, but says the order of the circuit court was not warranted, and denies that it can operate as res judicata. Petitioner then traverses and controverts some of the allegations of fact as to the manner and claim under which respondent originally obtained the custody of said child, and the circumstances under which he retained the same. The cause was referred, and the evidence taken and reported, and the cause heard by this court upon written testimony and printed and oral arguments by counsel for both parties.

From the view we feel impelled to take of the law in this case it would seem unnecessary to enter into a discussion of the evidence, as it might affect the rights of the parties upon a hearing of the case upon its merits. We will therefore but give a brief outline of the more salient matters. The petitioner was born in 1855, and at 12 years of age began to work to support himself. He was born in Kansas, and in his youth attended the common schools of that state. By his labors and industry, and without other assistance, he was enabled to attend the State Agricultural College of Kansas five terms, beginning in 1872. After teaching school for a while, he entered the Northwestern University, at Evanston, where he remained seven or eight years, graduating from the preparatory department, the university proper, and the Garrett Biblical Institute, where he fitted himself for service in the ministry of the gospel, receiving the order of elder in 1883. In one capacity or another he has been preaching since 1877. While at Evanston he met Jennie Marshall, the daughter of the respondent and the classmate of the petitioner. They were married in 1884. By this union two children are living-Joseph, 11 years old, and Kimball, the child now in controversy, who was born in February, 1900. The mother of Kimball, prior to his birth, entered the Presbyterian Hospital of Chicago for the purpose of confinement, and after the birth of Kimball died on March 3, 1900, in that hospital. Following the death and funeral services of his wife, petitioner received notice of the illness of his father in Kansas, and immediately went to his father, who died on the 19th day of the same month. The child Kimball was left in the hospital, upon the suggestion of those in charge of it, that it could be better taken care of there. Though no well-defined ailment developed in the child, it did not seem to thrive while at the hospital, and petitioner arranged with Mary Ernest, a sister of the deceased wife, to take the child and care for it. She received the child on the 10th of April, 1900, and petitioner employed a lady to assist her in her household duties in order that she might care for the child. Petitioner lived about forty miles from Mary Ernest, and Mary Ernest lived within five or six miles of respondent. Mary Ernest kept the child but two or three weeks, when she visited the home of respondent with it, and respondent and his wife insisted upon keeping the child, and Mary Ernest left it with them without any knowledge or arrangement between her and petitioner that it should be done. The first knowledge that petitioner had that the child was at the home of respondent was while on his way to visit it on the 23d of April, 1900, when he was so informed, and went to the home of respondent, and visited the child. The child Kimball has remained with the respondent thence hitherto. Notwithstanding the fact that petitioner has at no time received a salary of more than $750, he purchased and owns unimproved city lots in Chicago for which he paid $3,000, has saved and loaned out at interest over $3,500, has accumulated a library of the value of $2,000, and is possessed of horses and buggies and ample household effects. In these accumulations of property and money petitioner was aided to the extent of about $500 by his wife. Petitioner was remarried in September, 1902. His present wife is now 29 years of age, was reared on a farm, has good health, was educated in the district schools and the Northwestern University, has taught school, is without children, and, as far as the evidence discloses, is a woman of estimable character, economical and industrious, and has at all times been willing to receive and care for Kimball. After the death of his wife and up to the time of his remarriage the petitioner kept up his household, his family consisting of himself and a young lady who had lived with the family prior to the death of his wife, and his son Joseph, whose care and custody he kept all the time. Respondent and his wife are past 70 years of age, have reared a family of seven children, the youngest of which is about 30 years of age, and is the only one remaining at home. Respondent and his wife are both members of the same denomination of which petitioner is a minister. Respondent is possessed of about 700 acres of valuable farm land, free from incumbrance, and also possessed of a large amount of personal and other property.

So far as the social and moral fitness of either of these parties is concerned for the care of the child, there would seem to be no question, and the record sufficiently shows that all concerned are attached to this child, and, if the record were open to our consideration, and we felt free to act upon the facts we would have no hesitancy in holding that this father is entitled to the custody of his child. As before said, we feel constrained to hold that the proceedings and order of the circuit court in relation to the custody of this child are well pleaded as a bar to this proceeding. At the time the petition was filed, the court was in some doubt upon the question, and therefore allowed the case to proceed to the taking of the evidence. It is now with some reluctance that we declare our conclusion that we are unable to consider the case upon its merits. We regard the rights of the parent as superior to those of any other person, when that parent is a fit person to have the custody of children and is so circumstanced that he can provide the necessaries of life and administer to the requirements of such a charge. The mere fact that some other person may have more money or property in any form is not one that appeals to us. The divine injunction to multiply and replenish the species was not confined to the rich, nor was it intended that the poor should beget the children and the rich should rear them. To recognize such doctrine would be little less than monstrous, and would be in utter disregard of those natural instincts of love and care and interest found in the breast of the parent. And while it is said in the books that the interests of the child is the controlling question, it is not meant thereby to say that the financial interests, only, of the child shall predominate. The courts cannot be unmindful of the great fact standing prominently in all our biographies and histories, that the greater number of the men and women of real worth in our nation and throughout the world have come up through circumstances that required a struggle upon the part of their parents and themselves to make themselves what they were. While the financial interests of the child are not to be disregarded, they are, likewise, not to be controlling. Neither the day laborer nor the minister of the gospel is to be discriminated against in the consideration of this one of the highest natural rights with which man is endowed merely because of the wealth of those who are contending against him. Until it becomes contrary to law that people in poor or moderate circumstances shall produce children, the...