Haglund v. Egge

• Decision Date: 12 March 1919
• Docket Number: No. 4389.,4389.
• Citation: 171 N.W. 212,41 S.D. 433
• Parties: HAGLUND v. EGGE et al.
• Court: South Dakota Supreme Court

41 S.D. 433

171 N.W. 212

HAGLUND

v.EGGE et al.

No. 4389.^*

Supreme Court of South Dakota.

March 12, 1919.

Appeal from Circuit Court, Minnehaha County; Joseph W. Jones, Judge.

Habeas corpus proceeding by L. John Haglund against Carrie Egge, L. A. M. Egge, and Caroline Egge. From judgment denying the writ, and order denying new trial, plaintiff appeals. Judgment and order reversed, and cause remanded, with directions.Parliman & Parliman, of Sioux Falls, for appellant.

Caldwell & Caldwell, of Sioux Falls, for respondents.

McCOY, J.

This habeas corpus proceeding was instituted by the appellant to obtain the possession of his then five year old daughter from the respondents, who are the maternal grandmother, aunt, and uncle of said child. Much testimony was submitted, and the court made findings and judgment denying the writ, from which judgment the father appeals.

[1] The child in question was born at the home of the appellant's mother in 1913, while appellant was residing upon a claim in the state of Montana. A few days after the birth of the child, the mother died. Since the death of the mother the child has resided with, been in the care, custody, and control of, the respondent Mrs. Carrie Egge, maternal grandmother. During the time the child resided with the respondent grandmother appellant visited the respondents and his daughter about once a year. In 1915 appellant remarried, and at the time of the hearing was the father of another child about the age of one year. The appellant and respondents are all persons of unquestionable good Christian character; all are possessed of considerable means and valuable property; the respondent grandmother resides in the city of Sioux Falls; the appellant resides upon a farm in the state of Montana about 50 miles from the railroad, and about 3 miles from school and church. It is the contention of appellant that he, as the father, is, under the provisions of section 111, Civil Code 1903, and section 184, Rev. Code 1919, as an absolute legal right, entitled to the custody of his said minor child; it not being shown that he is an unfit person to have the control and custody of said child. Section 184 in substance provides that the father of a minor child is entitled to its custody, services, and earnings. While this statute gives the father a paramount right to the custody and control of his minor children, still we are of the view that the right is not absolute, but that it is a qualified right which must bend to whatever may be found to be for the best permanent interest of the child. Neither the father nor mother has any rights that can be allowed to militate seriously against the welfare of the child. 20 R. C. L. 597; Mercein v. People, 25 Wend. (N. Y.) 64, 35 Am. Dec. 653; United States v. Green, 3 Mason, 482, Fed. Cas. No. 15,256; Corrie v. Corrie, 42 Mich. 509, 4 N. W. 213;Houghton v. Houghton, 37 S. D. 184, 157 N. W. 316; Re Sidle, 31 N. D. 405, 154 N. W. 277.

The custody and control of a minor child is a most sacred trust which is cast by law, first upon the father, and, upon his decease, upon the mother. But the law which thus bestows the right has reserved to itself, acting through the courts of justice, the power of careful supervision in its exercise. The legal dominion which the parent has over the child is a qualified one and given for the discharge of an important trust, and in the carrying out of such trust the paramount question always is: What is for the best welfare of the child? 20 R. C. L. 601. In re Edith Pryse, 85 Kan. 556, 118 Pac. 56, 41 L. R. A. (N. S.) 564;Washaw v. Gimble, 50 Ark. 351, 7 S. W. 389;People v. Porter, 23 Ill. App. 196;Drumb v. Keen, 47 Iowa, 435;In re Beckwith, 43 Kan. 159, 23 Pac. 164;Jones v. Darnall, 103 Ind. 569, 2 N. E. 229, 53 Am. Rep. 545;Chapsky v. Wood, 26 Kan. 650, 40 Am. Rep. 321; Tyler on Infancy, 283. In a case such as this, where all parties concerned are of excellent character, and all are able, willing, and ready to do what they think best...