Ex parte Byron

• Decision Date: 22 November 1909
• Citation: 74 A. 488,83 Vt. 108
• Court: Vermont Supreme Court
• Parties: Ex parte BYRON.

74 A. 488

83 Vt. 108

Ex parte BYRON.

Supreme Court of Vermont. Essex.

Nov. 22, 1909.

Habeas corpus by Louise Byron, by Cassie Jordan, her next friend. Case adjourned to Supreme Court. On motion to dismiss. Pro forma judgment of discharge affirmed, order of commitment vacated, and custody of rela-trix awarded to Cassie Jordan.

Argued before ROWELL, C. J., and MUNSON, WATSON, HASELTON, and POWERS, JJ.

H. W. Blake, for relatrix.

George L. Hunt, for contestants.

POWERS, J. The relatrix, a child four years of age, is the illegitimate daughter of Cassie Jordan, who brings this petition for a writ of habeas corpus as next friend. The putative father of the relatrix is one Joseph Byron. For several years these parties, though unmarried, lived together as man and wife, during which time the relatrix was born. Later on, during the temporary absence of the mother, Byron took the child and disappeared, and has ever since kept it secreted from the mother, though she vainly sought to discover its whereabouts. Finally the mother found the child in the custody of the respondents, whom the father had hired to keep it, and who are respectable and deserving people residing at Island Pond, Vt. The mother is now married to one Samuel Jordan, and lives at Mechanic Palls, Me.

1. In the county court the respondents filed a motion to dismiss, but it failed to point out the defect at which it was aimed, so it was properly overruled; the rule being that a motion to dismiss, like a plea in abatement, must "not only point out the error, but also the method of correcting it." Nye v. Railroad CO., 60 Vt. 585, 11 Atl. 689; Thibault v. Conn. V. L. Co., 80 Vt. 333, 67 Atl. 819. It is now argued that it must be taken that this motion satisfies the rule, for the bill of exceptions states that the respondents moved that the complaint be dismissed, "for that it was not properly sworn to, being sworn to before a notary public, and not before either said Essex county court or a judge thereof, or a justice of the peace," and that the bill must control. Rut the motion itself is before us, being expressly referred to and made a part of the bill, and shows that the grounds specified found expression in argument only, and not in the motion itself.

2. As evidence tending to show that the mother was not a suitable person to bring up the child, she having testified that she intended to rear the child a Protestant, the respondents offered to prove that she had, shortly before, stated that she intended to bring up the child in the Catholic faith. This was excluded. The only claim made in support of the offer was that it tended to show that the mother was a changeable and unstable person; but we are satisfied that no harm resulted even if error was committed, for we cannot believe that any substantial finding could be predicated upon so slight a foundation as the excluded evidence would have furnished.

3. Though it appears from the record that the question of the mother's fitness was in issue, there is no finding as to where the interests of the child require its custody to be placed. Such question is one of fact, and, the judgment below being pro forma, we are limited to the facts actually found and placed upon the record. Brown v. Mudgett, 40 Vt. 68. It is uniformly held in this country that the mother is...