Ex Parte Ingenbohs

• Decision Date: 07 July 1913
• Citation: 158 S.W. 878
• Parties: Ex parte INGENBOHS.
• Court: Missouri Court of Appeals

158 S.W. 878

Ex parte INGENBOHS.

Springfield Court of Appeals. Missouri.

July 7, 1913.

1. GUARDIAN AND WARD (§ 8) — JURISDICTION OF COURTS — COURT OF APPEALS — PROBATE COURT.

The Court of Appeals has no authority to appoint a guardian for a minor, but the probate court has authority to appoint such guardian when it finds that the minor's domicile is in the county, and that its father is incompetent and unfit for the duties of guardianship.

2. HABEAS CORPUS (§ 99) — JURISDICTION — CUSTODY OF INFANT.

The Court of Appeals has authority in habeas corpus proceedings to hear and determine who shall have the custody of a minor child.

3. COURTS (§ 475) — CONCURRENT AND CONFLICTING JURISDICTION — PENDENCY OF PRIOR PROCEEDING.

Where the determination of the domicile of an infant child, and the fitness of its father for the duties of guardianship, is directly involved in the father's habeas corpus proceeding in the Court of Appeals to obtain custody of the child, the right of that court to determine those issues could not be abridged or interfered with by the probate court, in a guardianship proceeding instituted therein by the infant's grandmother, after the Court of Appeals had acquired jurisdiction.

4. HABEAS CORPUS (§ 85) — CUSTODY OF INFANT — EVIDENCE.

Evidence in a habeas corpus proceeding by a father to obtain the custody of his infant child held insufficient to show that he had given and abandoned the custody of the child to its maternal grandmother.

5. HABEAS CORPUS (§ 99) — CUSTODY OF CHILD — SURRENDER BY MOTHER — REVOCATION BY HER DEATH.

Where the mother of an infant child, before her death, gave it to the grandmother, such gift was revoked by her death, and the father's natural right to the child thereafter was not affected by such gift.

6. HABEAS CORPUS (§ 99) — CUSTODY OF CHILD — CONTRACT BY PARENT.

A father cannot by a contract, except as provided by statute, confer upon another, irrevocably as against himself, a right to the custody of his minor child, and, notwithstanding such contract, the custody will be awarded to him on habeas corpus, unless the child's welfare demands some other disposition.

7. HABEAS CORPUS (§ 99) — CUSTODY OF CHILD — FATHER AS NATURAL GUARDIAN.

The father, after the death of the mother, is the natural guardian of his minor child, and the law imposes upon him, and on him alone, the absolute duty of caring for and protecting it, and it is only when he fails in such trust, and when the interest of the child demands it, that the court will step in and award the custody to others competent to care for it.

8. HABEAS CORPUS (§ 85) — CUSTODY OF CHILD — FITNESS OF FATHER.

In habeas corpus by a father to obtain the custody of his infant child from its maternal grandparents, with whom it had been left on the death of its mother under an agreement for its care and support, it appeared that petitioner was a man of good character, steadily employed at a good salary desiring to have his child with him, and that he had a suitable home for it. Held that he was fit to have the child's custody, and that the interest of the child would be best subserved by giving him its custody.

Original proceeding in habeas corpus, by George Ingenbohs to obtain the custody of his infant daughter, Alberta Antoinette Ingenbohs. Writ awarded.

Lehmann & Lehmann, of St. Louis, for petitioner. W. Cloud, of Pierce City, for respondents.

FARRINGTON, J.

On March 7, 1913, there was filed in this court a petition by George Ingenbohs, the father of Alberta Antoinette Ingenbohs, for a writ of habeas corpus, the purpose being to obtain the custody of his said daughter, an infant, alleging that it was wrongfully and illegally withheld by the respondents, Catherine Conley and Bernard Conley, its maternal grandparents. The writ was issued on March 13, 1913. Respondents in due time made their return, alleging that the child had been given to them by its father, the petitioner, on the occasion of the death of the child's mother, which occurred at respondents' home, and that the father "abandoned to the respondents" this child, that the petitioner is "incompetent and unfit personally to care for his child," and that on March 31, 1913, the probate court of Barry county (where respondents reside and keep the child) "ordered and adjudged that the petitioner is incompetent and unfit for the guardianship of his child, and appointed respondent Catherine Conley its guardian." The reply denies the gift or abandonment, denies that petitioner is incompetent or unfit to care for his child, denies that Catherine Conley is the legally appointed guardian of the child, and alleges that petitioner has filed a petition for a writ of prohibition in this court, docketed as cause No. 1,064, to be directed to the judge of the probate court of Barry county, the object of which is to prohibit said officer from proceeding further concerning the custody of said child.

This court made an order appointing Honorable E. A. Barbour of the Springfield bar as special commissioner to hear the testimony in the cause, and to report his finding of facts and conclusions of law thereon to this court, which he did in proper time. It appears from his report that 43 witnesses were examined, some of them in St. Louis, where the petitioner resides, and the others in Monett, where respondents reside. The detailed finding of the facts made by the special commissioner need not be set forth in this report of the case. The commissioner's final conclusions upon the facts and the law adequately present every phase of the case, and that portion of his report is as follows:

"As shown by the pleadings, this is a contest between the father of the infant in question, on the one side, and its grandparents on its mother's side, on the other.

"Upon the issues joined and under the findings of fact, three questions arise, to each of which, separately, the law will be applied as found by your commissioner, to wit: First. It is contended by respondents that the appointment of Mrs. Conley as guardian of this child by the probate court takes away the right of this court to determine the rights of the parties in the habeas corpus proceeding. On the other hand, petitioner contends that this court first had complete jurisdiction of the parties and the subject-matter involved, and that therefore (and for other reasons) the probate court was without jurisdiction in the premises at the time it acted. Second. As to whether or not Mrs. Conley acquired any exclusive right to the care and custody of this child, by reason of what occurred at the bedside of petitioner's wife, shortly prior to her death, and his actions subsequent to her death. Third. Should the care and custody of this infant child be given to the petitioner, its father, or to the respondents, its grandparents? Of these in their order.

"I. It must be conceded that the habeas corpus petition had been filed in this court, and the writ had been issued and personally served on each of the respondents, before any steps at all were taken in the probate court looking to the appointment of a guardian for the infant child involved in this action. These facts were known to the probate judge and to respondents' attorney before the inquiry was held, and before the appointment of the guardian was made. It is true that this court has no authority to appoint a guardian for a minor. It is also true that the probate court does have authority to appoint such guardian, when its jurisdiction in that regard is properly and legally exercised. It is also unquestionably true that the Court of Appeals has authority, in habeas corpus proceedings, to hear and determine who shall have the custody of a minor child, such as the one involved in this controversy. Edwards v. Edwards, 84 Mo. App. 552; Brewer v. Cary, 148 Mo. App. 193, loc. cit. 208, 215, ; Orey v. Moller, 142 Mo. App. 579 ; In re Boutelle, 124 Mo. App. 450 .

"Before the probate court would have any right to appoint Mrs. Conley as guardian of this child, even when no question of jurisdiction, or regularity of its proceedings, is involved, that court must first find that the child's domicile is in Barry county, and that its father is incompetent and unfit for the duties of guardianship. The determination of those very questions, between the same parties, in order to ascertain who is the proper custodian of this same child, is directly involved in this habeas corpus proceeding, and the right of this court to determine those issues cannot be impaired, abridged, or interfered with by the probate court in the guardianship proceeding instituted therein, after this court had acquired jurisdiction in this proceeding. I therefore hold that this court first acquired jurisdiction to determine the proper custodian of the child in question, and that its right to now determine that question has not, in any way, been impaired or curtailed by the action of the probate court of Barry county in the appointment of Mrs. Conley as guardian for petitioner's child. To hold otherwise would be to hold that after an appellate court in this state had acquired jurisdiction in a habeas corpus proceeding involving the right to determine the custody of a minor child, its right to act, unless it acted very speedily, could be taken away and entirely destroyed simply by having a probate court appoint a guardian for the child. Plainly such cannot be the law. In support of these conclusions I refer to the following authorities: State ex rel. Evans v. Broaddus, 245 Mo. 123 ; Peck v. Jenness, 7 How. 612, 12 L. Ed. 841; Seibel v. Simeon, 62 Mo. 255; In re Gladys Morgan, 117 Mo. 249 [21 S. W. 1122, 22 S. W. 913]; State ex rel. Merriam v. Ross, 122 Mo. 435, 462 [25 S. W. 947, 23 L. R. A. 534]; 11 Cyc. 985, citing numerous cases.

"In State ex rel. Evans v. Broaddus, supra, a witness was committed by a notary public for refusing to answer questions at the taking of his deposition. Warrant of commitment was placed in...