Egge v. Haglund

• Decision Date: 18 October 1920
• Citation: 179 N.W. 491,43 S.D. 382
• Parties: EGGE et al. v. HAGLUND.
• Court: South Dakota Supreme Court

43 S.D. 382

179 N.W. 491

EGGE et al.

v.HAGLUND.^*

Supreme Court of South Dakota.

Oct. 18, 1920.

Appeal from Circuit Court, Minnehaha County; L. L. Fleeger, Judge.

Action by Carrie Egge and others against L. John Haglund. From order overruling demurrer to complaint, defendant appeals. Order reversed, and cause remanded, with directions.

See, also, 171 N. W. 212;174 N. W. 744.Parliman & Parliman, of Sioux Falls, for appellant.

Caldwell & Caldwell, of Sioux Falls, for respondents.

McCOY, P. J.

This is an appeal from an order overruling a demurrer to a complaint. In substance the complaint alleged that Luella Haglund is a female child 6 years and 8 months of age, and the daughter of defendant; that the mother died when Luella was 13 days old; that since the death of the mother said child has at all times been in the home and under the care and control of plaintiffs, who have furnished her with a good and proper home, and that she has become attached to respondents, as would a natural child; that defendant is, and has been the last 6 years, a resident of Montana, and is but little acquainted with his said child; and that said child has little acquaintance with, and no affection for, him, but rather has a great dislike for and is in constant fear of him; that in March, 1918, defendant herein as a plaintiff instituted in the circuit court habeas corpus to recover from these plaintiffs as defendants the custody, care, and control of said child; that said habeas corpus action was duly tried in the circuit court, and resulted in findings in favor of plaintiffs; that defendant duly appealed from said judgment to the Supreme Court, and in March, 1919, the Supreme Court reversed said judgment of the circuit court, and duly ordered and directed the said circuit court to enter judgment, awarding the custody, care, and control of said child to defendant; that thereafter, pursuant to said judgment of the Supreme Court, the circuit court, in July, 1919, entered judgment which, among other things, ordered and decreed that the plaintiff (this defendant) recover from the defendants (these plaintiffs) the custody, care, and control of said child, and that the defendants in that action forthwith produce and deliver said child to the plaintiff in that action; that at the time of the habeas corpus trial and prior thereto the feelings of said child were not unfriendly to her father, and she then had no fear or ill will towards him, but thereafter said child began to develop unusual fear of her father, and became exceedingly nervous and fearful lest defendant should prevail in his appeal in said habeas corpus action, and would remove her from the custody of plaintiffs by force and against her will; that defendant has threatened at various time to remove said child by force if necessary, and that on account of said threats said child has grown more nervous and worried, and has been thrown into nervous fits, and been in danger of permanent mental collapse; that during the past year, on account of said conduct and threats of defendant, said child has had some 50 of said nervous fits, lasting for about one-half hour; that in December, 1919, said defendant went to the home of plaintiffs and demanded the possession and custody of said child; that plaintiffs informed him the child was there, and that he had permission to take her from their home; that defendant then undertook to persuade said child to go with him, but she refused to go; that defendant then undertook to remove said child by force, but was unable to do so; that said child thereupon became greatly frightened, and screamed and fought defendant, and frantically called for help, and practically lost consciousness; that it would be dangerous to said child, and permanently injurious to her health, to remove her, or permit her to be removed, from the home of these plaintiffs, and that from the foregoing facts the welfare of said child requires that she remain with plaintiffs; that unless said judgment in habeas corpus is vacated and set aside, and unless said defendant is enjoined from so doing, defendant will take possession of said child and carry her away from the home of these plaintiffs, to the permanent injury of said child. To this complaint defendant interposed a demurrer on the ground that the same does not state facts sufficient...