Ex parte Ryan

• Decision Date: 28 February 1910
• Docket Number: 17,956
• Citation: 52 So. 573,126 La. 449
• Court: Louisiana Supreme Court
• Parties: Ex parte RYAN

52 So. 573

126 La. 449

Ex parte RYAN

No. 17,956

Supreme Court of Louisiana

February 28, 1910

On the Merits, May 9, 1910. Rehearing Denied June 6, 1910.

Appeal from Twenty-Ninth Judicial District Court, Parish of St Bernard; R. Emmett Hingle, Judge.

Application of John F. Ryan for writ of habeas corpus. Application denied, and relator appeals. Affirmed.

See also, 124 La. 286, 50 So. 161.

John C Wickliffe, for appellant.

Fernand J. Nunez, for appellee.

NICHOLLS J. PROVOSTY, J., takes no part, not having heard the argument.

OPINION

NICHOLLS, J.

On Motion To Dismiss.

This case comes a second time before this court. The pleadings and facts connected with it will be found reported in 124 La. 356, 50 So. 385.

The trial of the writ of habeas corpus which was suspended for a time through a misapprehension was finally taken up, and resulted in a judgment adverse to the relator, and from that judgment he appealed.

Appellant executed an appeal bond, and we are informed that, by proceedings subsequently taken in the district court, the appeal was, on motion of the respondent, dismissed on the ground of the insufficiency of the surety on the appeal bond.

The transcript of appeal had been none the less filed in this court, but the appellee, taking as his basis therefor the proceedings in the district court, moved this court to dismiss the appeal. Before the case was submitted to us, counsel for appellant filed an ex parte copy of an order of the lower court setting aside its prior order dismissing the appeal, and reinstating for subsequent action the motion to dismiss.

The proceedings in the district court in respect to the dismissal of the appeal are not in this record. The motion to dismiss is hereby overruled. The appeal is sustained.

Statement of the Case.

NICHOLLS J. This case comes a second time before this court. The pleadings and facts connected with it will be found reported in 124 La. 356, 50 So. 385.

The trial of the writ of habeas corpus, which was suspended for a time through a misapprehension, was finally taken up, and resulted in a judgment adverse to the relator, and from that judgment he appealed.

The relator does not bring this action as tutor of the child, Frances Elizabeth Ryan, but under his asserted legal rights as her father. The defendant, Edward Peter, is the brother of relator's deceased wife. He claims to be entitled to the care and custody of the little girl by reason of the fact that, when her father and mother disagreed and parted, the mother and the child went at once to his home, and after a visit to her mother in Carrollton on which visit she (the mother) died the child was again taken to respondent's house, where she has since continued to live. Respondent urges that as her near relative it is his duty to guard against her being brought under influences calculated to injure her, and to see to her welfare and happiness.

It is disclosed by the testimony that the father shortly before his marriage with defendant's sister had had illicit relations with a young girl, and that a child (a boy) was the result of such connection. The young girl herself married a short while after a man by the name of F.

The district judge in rejecting the demand of the father to be awarded the care and custody of his daughter referred to this matter in the following language:

"The relationship with Mrs. F. before the latter's marriage should have ceased when he himself married. He should have put that affair behind him. However, a careful consideration of the entire testimony on this point cannot but lead to the conclusion that his relatives had not only come in contact with her, but also he had stooped so low as to bring his child Frances Elizabeth (just reaching the age of womanhood) into the company of this woman and his ill-begotten child by her. Relator makes no denial of this, but on the contrary brings this Mrs. F. into court into constant company of members of his family to testify in his behalf in this suit, and it appears from the record that she had not been previously summoned to testify as a witness herein. This latter fact alone should lead to the immediate inference that the relations presently existing between relator and Mrs. F. can result in aught but good, should the child be given into his custody. For a child to be forced into the company of a woman who has been the cause of so much misery to the departed mother of the child foreshadows for her little of the good and happiness coveted by all. Believing firmly in the preservation of those ties binding a father to his child, it is indeed with reluctance that I have arrived at the conclusion that the relator herein should not be awarded the custody of the child; and I have been largely influenced in this connection by the presence in court of Mrs. F. Her being in the constant company of relator's family (his mother, sister, and brother) in the train to and from the courthouse -- her demeanor therein as a witness -- all are facts whereof I am bound to take judicial cognizance in the consideration of this case, wherein are involved questions which are more than sacred -- the character and future of the child just budding into womanhood."

Opinion.

The testimony in the record does not justify the conclusion of the trial judge as to the continuance of relator's relations with Mrs. F. since his marriage. Both she and the relator testified that they had ceased after his marriage and there is nothing in the transcript to establish the contrary. There was no attempt to impeachment further than the fact mentioned by the judge that she was a voluntary witness on the trial of...