Glansman v. Ledbetter

• Decision Date: 08 March 1921
• Docket Number: No. 23725.,23725.
• Citation: 190 Ind. 505,130 N.E. 230
• Parties: GLANSMAN v. LEDBETTER et ux.
• Court: Indiana Supreme Court

190 Ind. 505

130 N.E. 230

GLANSMAN

v.LEDBETTER et ux.^*

No. 23725.

Supreme Court of Indiana.

March 8, 1921.

Appeal from Circuit Court, Morgan County; Alfred M. Bain, Judge.

Petition by Mary E. Glansman for a writ of habeas corpus against Sidney Ledbetter and wife to obtain the custody of an infant child. From a judgment for respondents, petitioner appeals. Reversed and remanded.Edward W. Little, Earl W. Little, Harding W. Hovey, and Frank S. Roby, all of Indianapolis, for appellant.

N. A. Whitaker, O. W. Smith, and S. C. Kivett, all of Martinsville, for appellees.

MYERS, J.

Appellant petitioned the Morgan circuit court for a writ of habeas corpus to obtain the custody of her child, four years of age, alleged to be unlawfully detained by appellees. The writ was issued, and for a return appellees averred that at the February term, 1918, of the Morgan circuit court such proceedings were had that by the judgment of that court respondents adopted the child as their own, and by virtue of this judgment they claim the right to its exclusive custody. Appellant filed exceptions to the return which was disallowed, and a reply alleging new matter in avoidance of the return. A trial was had which resulted in a judgment in favor of respondents. For a reversal of that judgment appellant has assigned as errors the action of the court in overruling her exceptions to the return, and in overruling her motion for a new trial.

The exceptions challenged the return for want of facts in that: (1) It failed to set out the judgment; (2) it failed to show that the court rendering the pretended judgment had jurisdiction of the subject-matter or of the parties; (3) it failed to state facts showing that the Morgan circuit court had jurisdiction to render a judgment of adoption.

The question thus presented is one of pleading. The return was signed and verified by the respondents, in which it appears that they relied entirely on a judgment of adoption rendered by the Morgan circuit court. The return does not include a copy of the judgment and this omission furnishes the principal basis for the exceptions. Looking to section 1173, Burns' 1914, in so far as the same is material, it provides that-

“The return must be signed and verified by the person making it, who shall state: First. The authority or cause of the restraint of the party in his custody. Second. If the authority be in writing, he shall return a copy and produce the original on the hearing.”

[1] We judicially know that the Morgan circuit court is a court of general jurisdiction with full power and authority to hear and determine a proceeding for the adoption of heirs. Sections 868, 3098, Burns' 1914. Hence, as to the question of that court's jurisdiction to render such judgment, it was only necessary for the respondents to show that they were claiming the custody of the child by virtue of a judgment of adoption, at that time in full force and effect, rendered by the Morgan circuit court. Jackson v. Smith, 120 Ind. 520, 22 N. E. 431;Lucas v. Hawkins, 102 Ind. 64, 1 N. E. 358;Spangle v. Spangle, 41 Ind. App. 297, 83 N. E. 720.

[2] But the failure to make a copy of the judgment relied on a part of the return was an omission for which the exceptions ordinarily should be allowed. Such failure is regarded unimportant only because this proceeding involves the welfare of an infant and governed largely by the discretionary powers of the court, as distinguished from proceedings for the release of a party held upon a criminal charge; for as said in the case of Bullock v. Robertson, 160 Ind. 521, 65 N. E. 5:

“When an infant is brought into court in obedience to a writ of habeas corpus, it is in the custody of the court, subject to its disposition, and this power rests upon the broad foundation of the general jurisdiction of the court over infants.”

Consequently the court's action in awarding the custody of an infant is not controlled by the averments or sufficiency of the return. Hochheimer on Custody of Infants (3d Ed.) § 57.

Appellant, in support of her motion for a new trial, insists that the decision of the court is not sustained by sufficient evidence, and is contrary to law.

With reference to the pleadings, we may add that the reply proceeded upon the theory: (1) That the Morgan circuit court had no jurisdiction of the person of appellantor the subject-matter of the proceedings which resulted in the alleged judgment of adoption; (2) that the alleged judgment of adoption was procured by the fraud of respondents on the court rendering the judgment.

Appellees take the position, as we understand them, that this appeal must fail for two reasons: (1) Because the undisputed facts show that this proceeding was a collateral attack upon a judgment, fair upon its face, and rendered by a court of general jurisdiction; (2) if the judgment of adoption is void, the writ issued in this proceeding brought the child within the custody of the court for its disposition, under its general jurisdiction over infants, and its action in the premises must be regarded as for the best interests of the child.

The general finding of the court in part states:

“That said defendants are entitled to the care and custody of the child, and that her correct name be Kathleen Ledbetter, as hereinbefore ordered by the judgment of this court.”

The judgment in substance was that the best interests of the child required that it be left in the permanent care and custody of appellees.

Looking at the entire record before us, it would seem that the former proceeding, which resulted in the adoption judgment, was influential in the decision of the present case. On the face of the record of that case, we are not surprised that the court would hesitate to change the status of the child thus fixed, but, should it appear that the court did not have jurisdiction over the person of a necessary party, or of the subject-matter, or that such judgment was in fact procured through the fraud of the successful party, it should not be allowed to stand, if properly attacked.

There is practically no conflict in the evidence as to the material facts. Therefore, for the purpose of a better understanding of this case, we incorporate the following statement: On April 19, 1915, Mary E. Aull became the mother of an illegitimate child and gave it the name of Kathleen Aull. The mother, at the time the child was born, and theretofore and thereafter until August, 1919, resided with her parents at No. 10 North Rural street, Indianapolis, Ind. On March 17, 1916, at that address, the child was by the brother of its mother, and with the mother's consent, given over to the respondent herein Mrs. Nellie Ledbetter, for care and attention, at an agreed price of $2 per week, which was fully paid up to April, 1918, with the exception of $60. At the time the child was given over to Mrs. Ledbetter she was told that its name was Kathleen Merkle, and that its mother's name was E. Merkle, and for matters regarding the child she was instructed to write to Mrs. Aull or the mother, E. Merkle, at No. 10 North Rural street, Indianapolis, Ind. Mrs. Ledbetter thereafter did write to Mrs. Aull and to the mother as E. Merkle at that address, and received letters, money, clothing, shoes, and other articles for the child as coming from the Aulls and Mrs. Merkle up to August, 1919. On January 7, 1919, Mary E. Aull, the mother of the child, was married to W. W. Glansman, and in August, 1919, she equipped with household furniture a four-room home with bath at Jersey City, N. J., at which point, with her husband, she has since continued to reside. On August 22, 1917, the mother of the child wrote Mrs. Ledbetter inclosing $5 “as part payment on Kathleen's board,” and, after making excuses for not being able to send more money, said:

“I trust baby is well, and I only hope things will change so that I can come down, but I know when I do it will be much harder for me to leave her, for as it is, I haven't seen her but I am always longing for her and I hope I can have her soon. Will send you more in next letter. Thanking you for your kindness, and with love and kisses to the babe.”

Mrs. Ledbetter testified that she knew Mrs. Aull, but did not know that she was the grandmother, but thought she was. She did not know the mother of the child was named Aull, but knew she was of the same family. She knew that the young man who gave her the child, and afterwards died in France, was the brother of the mother. She received a number of letters signed “Mrs. Merkle” which were sent through Mrs. Aull, and, while she suspected that Mrs. Merkle was Mrs. Aull's daughter, she did not know it. In the fall of 1917 she had her attorney of Martinsville write Mrs. Aull at No. 10 North Rural street, Indianapolis, Ind., in substance saying that Mrs. Ledbetter had been in to see him with reference to Kathleen, and it was necessary that something be done toward a permanent arrangement for the child, and that they were willing to adopt the child, but, if this was not satisfactory, they wanted some disposition made at once, and would be pleased to have the correct name and address of the mother. On October 23, 1917, he again wrote in substance that he had received a letter which did not give the desired information, and while there was no desire to inconvenience or recall any unpleasant circumstances concerning the child, yet the Ledbetters were-

“fully informed as to the mother of this child, and, if necessary, we will make the publication required by law as to this matter in order to get proper notice. We felt, however, that if your daughter, the mother of this child, did not desire this notoriety, we would avoid this publication.”

On November 7, 1917, this same attorney wrote Mrs. Aull:

“It seems that you have a disposition to ignore our request for some settlement with reference to the child now in the possession of Mr. and Mrs. Ledbetter. You will recall that you agreed to take care of this...