Ex Parte Chambers
| Decision Date | 21 May 1915 |
| Citation | 221 Mass. 178,108 N.E. 1070 |
| Parties | Ex parte CHAMBERS. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Peter J. Casey, of Boston, for petitioner.
Jas. A Lowell and Jas. E. Ewers, both of Boston, for respondent.
Habeas corpus is a proceeding at law. No appeal lies from a decision or order of a justice of this court made at common law. Channell v. Judge of Central District Court of Northern Essex, 213 Mass. 78, 99 N.E. 769, and cases there collected. The appeal must be dismissed.
It is doubtful whether exceptions lie to rulings made in a hearing on a petition for a writ of habeas corpus, for the reason that it might be inconsistent with its purpose, which is to try forthwith the right of a person to his liberty, if its granting could be delayed by exceptions. Wyeth v Richardson, 10 Gray, 240; King's Case, 161 Mass. 46, 36 N.E. 685; Bishop's Case, 172 Mass. 35, 51 N.E. 191. The usual course has been for the presiding justice to reserve, report of adjourn cases into the full court where its determination ought to be had. King's Case, 161 Mass. 46, 49, 36 N.E. 685; Plympton's Case, 196 Mass. 571, 82 N.E. 715; Sellers' Case, 186 Mass. 301, 71 N.E. 542; Morton's Case, 196 Mass. 21, 81 N.E. 869, 11 L. R. A. (N. S.) 1087; In re Duddy, 219 Mass. 548, 107 N.E. 364. But if it be assumed in favor of the petitioner that the case is here properly, without so deciding, no error is shown.
The complaint of the petitioner on the merits is that she, being a spinster, the probate court has appointed a guardian of her minor child and his decreed that such guardian shall have the custody of the child until its further order. There was a hearing in that court and an adjudication that the mother was an unsuitable person to have the custody of her minor child. The contention is that the probate court has no jurisdiction to appoint a guardian under these circumstances. But this is not so. Plainly the statute confers such jurisdiction. Gibson, Appellant, 154 Mass. 378, 28 N.E. 296. There is no limitation of jurisdiction, either by express terms or fair implication, in R. L. c. 145, § 1, or chapter 162, § 3, to the appointment of guardians for children born in lawful wedlock. The words of the statute confer that jurisdiction in broad terms and include all minor children whatever may be their status in other respects. In reason there is quite as much necessity for the appointment of guardians for illegitimate minors as of any others.
The proceedings for the appointment of the guardian appear to have been regular, and due notice to have been given to the parent. Moreover, the mother later filed in the probate court a petition to set aside the appointment of the guardian and finally consented to the dismissal of that petition. She is bound by that decision. Rothschild v. Knight, 176 Mass. 48, 55, 57 N.E. 337.
Beyond doubt the Legislature has the power to authorize the appointment of a guardian with custody of the minor, and thus to deprive the mother for good cause shown of the custody of the child. Dumain v. Gwynne, 10 Allen, 270; Purinton v. Jamrock, 195 Mass. 187, 80 N.E. 202, 18 L. R. A. (N. S.) 926.
When the petition for the writ was filed, an order of notice was issued to the guardian to appear and show cause why the writ should not issue. Upon the return of the order, the guardian appeared and (as stated in the exceptions) 'filed a writing purporting to be a reply to the petition and complaint.' When the matter was called for hearing, the presiding justice ascertained by inquiry of counsel that the ground upon which the petition rested was want of jurisdiction in the probate court to appoint a guardian of the child. The presiding justice then assumed that all the material allegations set out in the complaint were true, for the purpose of raising that question, and, after hearing arguments of counsel, ordered that the petition be dismissed. The complainant's contention that this procedure was irregular and that the writ should issue and the hearing be had only after the person has been brought into court, cannot be supported. It was decided to the contrary in Sims' Case, 7 Cush. 285, after elaborate consideration, when the statue was in substance the same as now. It...
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