Hardin v. Hardin

• Decision Date: 23 April 1907
• Docket Number: No. 20,909.,20,909.
• Citation: 168 Ind. 352,81 N.E. 60
• Parties: HARDIN v. HARDIN.
• Court: Indiana Supreme Court

168 Ind. 352

81 N.E. 60

HARDIN

v.HARDIN.

No. 20,909.

Supreme Court of Indiana.

April 23, 1907.

Appeal from Circuit Court, Hendricks County; Thos. J. Cofer, Judge.

Habeas corpus on petition of William H. Hardin to procure the custody of one Mills Hardin, a minor, against Lora Hardin. From a judgment dismissing the writ, petitioner appeals. Affirmed.

George W. Brill and Geo. C. Harvey, for appellant. Solon A. Enloe, for appellee.

JORDAN, J.

On May 17, 1906, appellant applied to the Hendricks circuit court for a writ of habeas corpus. In his verified complaint he alleges that he “is the grandfather of one Mills Hardin, a minor child of the age of five years, to whose custody and possession he is rightfully entitled; *** that defendant, Lora Hardin, has wrongfully seized the body of said child, and removed him from the state of Kentucky, and now illegally and without cause restrains him in the town of Danville, in Hendricks county, state of Indiana, and wrongfully deprives this petitioner of the custody and possession of said child by forcibly confining and restraining him in and about the residence of said Lora Hardin; that said restraint is unlawful and without cause or right; that on the 15th day of May, 1903, in the McLean circuit court, in the state of Kentucky, said Lora Hardin obtained a judgment for divorce against one Mark L. Hardin *** and for the care and custody of said infant child, Mills Hardin,” which care, control, and custody of said child she was to have subject to the further order of said court. It was further ordered by said court that said Mark L. Hardin should be permitted to have a reasonable opportunity to see and associate with said child. It is further alleged that “on the 22d day of September, 1903, said Mark L. Hardin served written notice upon said Lora Hardin that he would move the aforesaid court for an order to be permitted to see and have the custody of said child, Mills Hardin, at such reasonable times as the court might prescribe. This notice was properly served upon said Lora Hardin and the service thereof by her accepted. The complaint then alleges that on the 28th day of September, 1903, the judge of said McLean circuit court modified said order as to the care, custody, and control of said infant child, Mills Hardin, in this respect: That “this petitioner should have the custody of said child for one week in every three weeks for and on behalf of said Mark L. Hardin, that one Samuel H. Mills and said defendant, Lora Hardin, should have the custody of said child two weeks out of every three weeks, and that the parties should have alternately the custody of said child for the periods aforesaid, until the further order of the court.” It is further alleged that in December, 1903, said defendant, Lora Hardin, in violation of the order and judgment of said court “[which is still valid and subsisting and has never been set aside or rescinded or appealed from], and without authority from or permission of said court, or from this petitioner, removed said child from the state of Kentucky and beyond the jurisdiction of said court, and has ever since, and does now, deprive the petitioner herein of the possession of said infant.” It is averred that the petitioner or complainant is a man of ample means to provide a home for such infant and supply it with all the necessaries of life, and is a fit person to have the care and custody thereof. The complaint closes with a prayer that a writ of habeas corpus be granted to the plaintiff, and that defendant, Lora Hardin, be required and ordered to deliver up the custody of said child to the petitioner, and that it be delivered from said unlawful restraint. Upon this complaint a writ of habeas corpus was issued, directed to the defendant,Lora Hardin, commanding her to have the body of Mills Hardin, etc., before the judge of the Hendricks circuit court on the 21st day of May, 1906, at the hour therein named, at the courthouse at the town of Danville, to do and receive what should be ordered concerning him. The sheriff, it appears, made return to the writ, showing the service thereof on appellee. In obedience to the command of the writ, appellee appeared in the lower court, and filed a motion to quash the writ as follows: “Comes now the defendant in the above-entitled cause by Solon A. Enloe and Otis E. Gulley, her attorneys, and moves the court to quash the writ issued herein, for the following reasons, to wit: (1) The plaintiff has no legal capacity to institute this action. (2) There is no certified copy of the decree or modified decree of the circuit court of McLean county, Ky., in the case of Lora Hardin v. M. L. Hardin, attached to the complaint, or petition, as an exhibit thereto. (3) The said petition is insufficient to justify or authorize the issuing of the writ under the law of the state of Indiana, and said writ was improvidently issued.” This motion was sustained, to which appellant excepted, and refused to further plead, whereupon judgment was rendered against him. He appeals, and assigns as error that the court erred in sustaining the motion to quash the writ. That the motion to quash tested the sufficiency of the complaint or application is well settled by the decisions of this court. Schleuter v. Canatsy, 148 Ind. 384, 47 N. E. 825, and cases there cited.

It will be noted that appellant, in his complaint, alleges that he is the grandfather of the child in controversy. While the complaint does not expressly show that the defendant (appellee herein) is the mother of the child in question, nevertheless, from the facts therein averred, the inference reasonably and naturally arises that she is. Apparently, therefore, whatever right, if any, appellant may have to the custody of the child, is, as against the defendant, its mother, predicated or based on the judgment of the McLean circuit court, of the state of Kentucky, whereby, as averred, its custody was awarded to appellant for the time as alleged and shown in the complaint. It is disclosed that by the Kentucky court appellee was awarded a judgment or decree of divorce from one Mark L. Hardin, and the court gave her the care and custody of the infant child, Mills Hardin, subject to its further order. Subsequently, however, upon notice to her, it appears that the court modified its judgment and order in respect to the custody of the child to the extent that appellant should, on behalf of said Mark L. Hardin, have the custody thereof for one week out of every three weeks, and that she and one Samuel H. Mills should have the custody of the child for two weeks out of every three weeks, until the further order of the court. The complaint then charges that she, in violation of the judgment and order of the court and without authority or permission therefrom, and without permission from appellant, removed said child from the state of Kentucky and beyond the jurisdiction of the McLean circuit...