Freeman v. McQuade
| Decision Date | 27 October 1958 |
| Docket Number | No. 8696,8696 |
| Citation | 80 Idaho 387,331 P.2d 263 |
| Parties | Mary Ardella FREEMAN, Plaintiff, v. Honorable Jack McQUADE, Judge District Court for the Second Judicial District in and for the County of Latah, State of Idaho, Defendant. |
| Court | Idaho Supreme Court |
Melvin J. Alsager, Moscow, for plaintiff.
Felton & Bielenberg, Moscow, for defendant.
This is an original proceeding in this court upon an application praying for writ of mandate directed to the above named defendant, commanding said defendant to grant plaintiff's motion for stay of proceedings in Case No. 8503 on file in the District Court of the Second Judicial District of the State of Idaho, in and for the County of Latah, and entitled 'In the Matter of the Application of Mary Ardella Freeman for a Writ of Habeas Corpus'. An alternative writ of mandate was issued by this court. Defendant filed his answer and return to such writ. Briefs have been filed by the respective parties and the matter has been presented orally. The cause has been finally submitted and is now before us for determination.
By her habeas corpus proceeding, Mary Ardella Freeman seeks to recover the custody of her two minor children, Vesta Ruth Freeman, 10 years of age, and Ester Elaine Freeman, 6 years of age, from one Vesta J. Hendrickson. Mrs. Freeman at all times involved herein has been a resident of the State of Tennessee. She has four other children in addition to the two children above mentioned. She has been separated from the father of such children since before the birth of Vesta Ruth Freeman. Mrs. Freeman gave Mrs. Hendrickson the custody of Vesta Ruth Freeman when such child was about 14 months old. The child, Ester Elaine Freeman, since her birth, has been in the custody of Mrs. Hendrickson.
In July, 1954, Mrs. Hendrickson moved from Tennessee to the State of Idaho where she has since resided, bringing the two children with her. In 1958, Mrs. Freeman came to Idaho and on April 2, filed the above described application for writ of habeas corpus seeking the custody of the two minor children. The cause was tried before the defendant district judge beginning on the 4th day of April, 1958, and continued for nearly one week, at which time the court took the matter under advisement.
On April 22, 1958, and prior to a decision of the cause on its merits, the defendant district judge entered an order whereby such minor children were temporarily placed in the custody of the Children's Home Finding and Aid Society of North Idaho, Inc., at Lewiston, Idaho, there to be temporarily kept subject to the further order of the court.
On June 19, 1958, Mrs. Vesta J. Hendrickson, in open court, moved to have the two children taken out of the Lewiston Children's Home and to have their temporary custody given to Mrs. Hendrickson. Thereupon Mrs. Freeman, likewise in open court, moved for a stay of proceedings pending an appeal to the Supreme Court from the proposed final judgment in the cause awarding the custody of the two children to Mrs. Hendrickson.
On June 20, 1958, the motion of Mrs. Freeman for a stay of proceedings was reduced to writing and reads as follows:
'Comes Now, Mary Ardella Freeman, by and through her attorney of record, Melvin J. Alsager, and moves the Court for an order to set aside and withhold execution of its proposed Decree awarding to Vesta J. Hendrickson, Respondent, the minor children Vesta Ruth Freeman and Ester Elaine Freeman, now in the temporary custody of the Children's Home Finding and Aid Society of North Idaho, Lewiston, Idaho; and
'Further moves the Court for an order that the service of any future orders of this Court be set aside and that all matters remain in the Status Quo until petitioner can perfect her appeal to the Idaho Supreme Court.
'Dated this 20th day of June, 1958.'
This written motion was not filed in the cause until July 3, 1958, at 4:30 o'clock p. m.
Plaintiff herein asserts that her oral motion for a stay of proceedings was in fact orally denied by the trial court. The record before us does not disclose any action by the trial court upon the oral motion for stay of proceedings and does not show that any action has ever been taken by the trial court either granting or denying the written motion for a stay of proceedings.
On June 26, 1958, the defendant district judge signed and filed an order whereby said minor children were ordered returned to the custody of Vesta. J. Hendrickson pending the further order of the court. On July 3, 1958, at 11:48 a. m., the defendant signed and filed findings of fact, conclusions of law and decree awarding the custody and control of such minor...
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...proceedings in state court would address itself to the discretion of that Court just as it would in this Court. See Freeman v. McQuade, 80 Idaho 387, 331 P.2d 263 (1958). ...
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