Ex parte Turner
| Citation | 169 P. 109,86 Or. 590 |
| Parties | EX PARTE TURNER. v. HENDRYX ET UX. TURNER |
| Decision Date | 11 December 1917 |
| Court | Oregon Supreme Court |
In Banc.
Appeal from Circuit Court, Multnomah County; C. U. Gantenbein Judge.
Habeas corpus in the matter of Charles R. Turner, an infant, by R W. Turner, against James T. Hendryx and wife. Decree for defendants, and petitioner appeals. Reversed and rendered.
See also, 167 P. 1019.
This is a proceeding by habeas corpus wherein the father of the infant child, Charles R. Turner, seeks to regain the custody of the boy from the defendants. The trial court dismissed the writ, and awarded the permanent custody to the defendants. The petitioner appeals.
W. B Layton, of Portland (Hurlburt & Layton, of Portland, on the brief), for appellant. J. C. McCue, of Portland, for respondents.
It is urged by respondents that habeas corpus is a proceeding at law rather than in equity, and that since there is no bill of exceptions, this court can only consider the question as to whether or not the findings of fact support the judgment. This theory is based upon the language of section 669, L. O. L., which reads as follows:
In the consideration of this problem, it is logically necessary to consider the origin and purpose of the writ which has been invoked in this case. An excellent authority has said:
"Relief from illegal imprisonment by means of habeas corpus is not the creature of any statute, and the origin and history of the writ are lost in antiquity." 12 R. C. L. p. 1180.
The same authority further says:
It is useless to cite other authorities to this doctrine, for the quotations above set out voice the unanimous verdict of both textbooks and cases.
Of course this use of the writ is not the original one, nor is it to-day the dominant use, for the reports of our state disclose but one other case in this state where it has been invoked for this purpose. Ex parte Barnes, 54 Or. 548, 104 P. 296, 25 L. R. A. (N. S.) 172, 21 Ann. Cas. 465. In that case it was treated by opposing counsel and by this court without question, as an equitable proceeding and accorded a de novo hearing. This we think was clearly proper. The very nature of the investigation, the peculiar latitude involved in the inquiry, the nature of the relief sought and granted, all present an irresistible demand for the intervention of a court of equity. In the absence of our statute, quoted supra, it must be conceded that a court of equity would have jurisdiction. It has been held that since the Constitution, in its provision for maintaining the writ at all times except when in rebellion or invasion the public safety requires its suspension, is a protection of the writ as it obtained under the common law, no Legislature can abrogate or impair its efficiency. People ex rel. Tweed v. Liscomb, 60 N.Y. 559, 19 Am. Rep. 211; Servonitz v. State, 133 Wis. 231, 113 N.W. 277, 126 Am. St. Rep. 955. From all of which we conclude that the use of the writ, as it was available at common law, is still available in courts of equity, and the fact that our Legislature has seen fit only to provide a mode of procedure for its exercise in the cases for which it was originally designed, and is silent as to procedure in cases calling for the exercise of chancery powers in connection therewith, it follows that the statutory proceedings in equity cases are still available in this proceeding, which is clearly sui generis. We shall therefore consider the case as pending before us a de novo hearing.
We come then to a consideration of the evidence. From the evidence it clearly appears that the child was born on December 12, 1911, in Clarke county, state of Washington; that the mother died a few hours after the birth; and that it was at once decided that the father (petitioner) should take the body of his dead wife to White Salmon, her former home, for burial. The presence of the newborn babe aroused a discussion of its immediate care. According to her own testimony, the defendant Jennet E. Hendryx, a sister of the deceased mother, being present, said, "Give it to me and I will raise it," to which she says the father replied, "You shall have it." The father disputes this version and insists that he consented only to a temporary care of the babe by her. The father was gone three days on his trip to White Salmon, and on his return left the child in the care of defendants, who then lived on a farm about two miles from that of petitioner. While they were such near neighbors the father visited his child weekly, but after a time defendants moved, first to eastern Oregon, and later to a mine in southern Oregon, finally locating in Portland, during all of which time they kept the child with them. The father sent them small sums of money from time to time to aid in caring for the infant, although the amount so remitted is uncertain. The defendants insist that they only received $105 from the father, while he maintains that it was a much larger sum. When the child was about five years old the father married again, and has made several attempts to regain possession of the little boy, culminating in this proceeding. There is no evidence which tends to indicate that the petitioner is in any way unworthy or unfit to have the custody of his child, nor is any question suggested as to the character of his wife. The evidence certainly does not disclose any conduct indicating an abandonment, unless it be found in the testimony of Mrs. Hendryx in regard to the conversation had at the time of the mother's death when she urges that he gave the infant to her. Such evidence does not justify a court in ignoring the natural rights of a father, and even if it were undisputed, the great weight of authority is to the effect that the father has a right to revoke such an agreement, since a child is not a chattel, subject to sale or cold-blooded bargaining. The case of Ex parte Barnes, supra, is a case so completely in point that we adopt as the law of this case the reasoning found therein. The decree of the trial court is reversed, and one will be entered here awarding the custody of the infant to petitioner.
I cannot concur with all that is said by Mr. Justice BENSON, although I agree with the conclusion that the judgment should be reversed. There is no bill of exceptions in the record; and in my opinion the absence of a bill of exceptions not only precludes us from trying the cause de novo, but also prevents us from re-examining any disputed question of fact, if the decision of such disputed question of fact is dependent upon the evidence offered at the trial. Among the files is a transcript of the testimony certified to by the official court reporter and by the county clerk, but this transcript is not certified to or signed by the circuit judge. If the evidence cannot be presented on appeal, except through the medium of a bill of exceptions, then the inevitable conclusion is that we cannot on this appeal try the cause anew or re-examine the evidence for the purpose of deciding any question of fact. Smith v. Walters, 76 Or. 76, 147 P. 925.
To construe the meaning of the language found in section 669, L. O. L., is to decide whether a bill of exceptions is necessary, and for that reason the material part of the section is here set down:
"Any party to a proceeding by habeas corpus, * * * may appeal from the judgment of the circuit or county court refusing to allow such writ or any final judgment therein, either in term time or vacation, in like manner and with like effect as in an action."
A defeated litigant has no inherent right to appeal, and consequently the right of appeal does not exist, unless it has been granted by a statute. The Legislature has granted the right of appeal, but it also prescribed the manner in which the right must be exercised as well as the effect of the exercise of the right,...
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