Ferrie v. Trentini

• Decision Date: 31 March 1930
• Citation: Ferrie v. Trentini, 111 Conn. 243, 149 A. 664 (Conn. 1930)
• Court: Connecticut Supreme Court
• Parties: FERRIE v. TRENTINI ET UX.

149 A. 664

111 Conn. 243

FERRIE v. TRENTINI ET UX.

Supreme Court of Errors of Connecticut.

March 31, 1930

Appeal from Superior Court, New Haven County; Christopher L. Avery Judge.

Petition to the superior court by Vincent Ferrie for a writ of habeas corpus against Albert Trentini and wife.The writ issued, and from judgment for plaintiff, after his demurrer to defendants' return was sustained, defendants appeal.

Error and cause remanded, with direction.

Issuance of execution upon judgment in habeas corpus proceeding is unauthorized.

The plaintiff made an application to the superior court in New Haven county alleging that he was appointed the guardian and given the custody of the person of Mary Trentini, a minor child, on June 4, 1929, by the court of probate for the district of New Haven, and that she was being detained by the defendants, without right.The court issued the writ.The defendants produced Mary Trentini in court and filed a return containing numerous allegations, including that she is their daughter, and that her presence with them was by her own free will; that it is for her best interests and welfare that she remain with her parents, and no guardian for her is necessary; and that the respondents have taken an appeal from the order of the court of probate.It was further alleged, in substance, that Mary Trentini is over fourteen years of age and fully capable of selecting a suitable person to be her guardian, and did select her father, Albert Trentini, but the court of probate refused to appoint him and attempted to appoint Ferrie without giving her an opportunity to select any guardian, after such refusal to appoint her father.

The plaintiff demurred to the return principally on the ground, variously stated, that all the matters set forth therein constitute no defense or lawful return to a writ of habeas corpus, but are proper to be presented upon appeal from the action of the court of probate, and that the decree is to be complied with until modified or reversed on appeal.The court sustained the demurrer, and the judgment states: " The respondents failing to plead further, the court found the issues for the applicant, * * * [and] ordered that execution should issue forthwith against the respondents."Execution was thereupon issued and served; the respondents having failed and refused to obey the order and judgment and the execution, a rule to show cause why they should not be adjudged in contempt of court therefor was issued and heard, and the respondents adjudged to be in contempt and ordered committed to jail.

Charles S. Hamilton, of New Haven, for appellants.

Philip Pond, Daniel D. Morgan, and Joseph B. Morse, all of New Haven, for appellee.

Argued before WHEELER, C.J., and MALTBIE, HAINES, HINMAN, and BANKS, JJ.

HINMAN, J.

The first two assignments of error relate to the sustaining of the plaintiff's demurrer to the return.Most of the allegations of the return pertain to issues relevant to and involved in the appeal from the action of the court of probate in removing the respondent parents as guardians of the person of the minor and appointing the plaintiff as such guardian, in that they contemplate a retrial of issues, such as the suitability of the parents to retain their natural guardianship, and the welfare of the minor, determinative of the action of the court of probate, and not appropriate to or available in the present action.This is not applicable, however, to that portion of the return (paragraph 4) which amounts to an allegation that the decree of the court of probate appointing Ferrie as guardian, which is the basis of the issuance of the writ, is void, because, after a first choice by the minor had been disapproved, she was not given opportunity to choose some other person.Whether such a defect as so alleged renders the decree a nullity, and therefore the defendants were not bound to recognize and comply with it, is a question which was fairly raised by the allegation and the demurrer.The sustaining of the demurrer imports a ruling that this, like the other issues sought to be raised by the return, was a proper subject of review on the appeal from the decree of the court of probate and not appropriate to the present action.

The applicable statutory provisions present no difficulties of construction.Section 4861 of the General Statutes provides that, if both parents or the sole living parent of a minor shall be removed, the court of probate " shall thereupon appoint a guardian of the person of such minor unless it shall appear that such minor is fourteen years of age or over, in which case such minor shall be given an opportunity to choose his guardian as hereinafter provided."The provision for choice so referred to is section 4864, which reads as follows: " If any minor child fourteen years of age or over has no parent or guardian of his person the court of probate for the district in which such minor resides may notify him to appear and choose some person to be guardian of his person, and if said court shall approve of the person so chosen it may appoint him, but if it shall disapprove of such person or if such person fail to accept and qualify, the minor may choose some other person to be approved and appointed as aforesaid; but if such minor shall refuse or neglect to make choice of a person approved of by said court who will accept and qualify said court may appoint such person as it may deem proper."

The purpose of the present statute is the same as that of its predecessors, which were similar in all essential respects, and like conditions apply thereto." Guardians must be appointed.Some persons would carry out the object of the law, and some would not.How shall the selection be made?The common law gave the selection to the minor, when of sufficient age to act with discretion in the matter.But experience proved that minors, although of proper age to choose their guardians, sometimes were governed too much by their feelings, and improper selections were made.The statute in question sought to improve upon the common law.It is equally desirous to leave the selection to the minor, when of sufficient age to exercise judgment and discretion, so far as it can safely be done for the good of the minor, and devised the mode therein prescribed to make the appointment.The selection shall first be made by the minor; then, if in the judgment of the judge of probate the party selected is not a proper person to be the guardian, the judge may require that another selection be made.But if the judge of probate has the power to disapprove of the selection made by the minor whenever the judge sees fit so to do, whether the selection is a proper one to be made or not, the minor, in effect has no agency in the matter, and the appointment might as well be left to the judge in the first instance, as to go through with the farce of one selection after another, till the will of the judge of probate shall finally be accomplished by the selection of the person that the judge had in view at the commencement.* * * We have no doubt that the statute means, if a minor of lawful age shall make a proper selection of a person to be his or her guardian in the judgment of the judge of probate, the judge has no discretion in the matter, but the duty of the judge is to approve of the choice made, and make the appointment accordingly.It follows therefore that the judgment of a judge of probate, in disapproving of the choice made by a minor under this statute, must be based upon facts shown, or facts within the knowledge of the judge."Adams' Appeal from Probate, 38 Conn. 304, 306;Hamilton v. State,94 Conn. 648, 652, 110 A. 54;White v. Strong,75 Conn. 308, 311, 53 A. 654.

In Adams' Appealthe court of probate disapproved the first choice made by the minor and requested her to choose some other person, which she refused to do, and the court then made an appointment.The statutory requirement of an opportunity to the minor to make a second choice having been complied with, the sufficiency of the facts supporting the disapproval of the minor's first choice was held to be a proper subject for determination on appeal.Here however, it is alleged, and admitted by the demurrer, that, irrespective of the merits of the disapproval of the minor's first choice, opportunity to make or to refuse to make the second choice, which the statute requires be given her, was withheld from the minor.The appellants claim that the consequence of failure to comply with the statute in this respect deprived the court of jurisdiction to make an appointment, and that its decree is open to attack, as void for that reason, in the present proceeding.The appellee contends...