Hartman v. Henry

• Decision Date: 22 December 1919
• Citation: 217 S.W. 987,280 Mo. 478
• Parties: HARTMAN v. HENRY et al.
• Court: Missouri Supreme Court

217 S.W. 987

280 Mo. 478

HARTMAN v. HENRY et al.

Supreme Court of Missouri, in Banc.

December 22, 1919.

Rehearing Denied January 26, 1920.

Petition for habeas corpus by Luella Hartman, as guardian, against Gothard E. Henry and others to obtain custody of Aeriel Hartman, a six year old child. Writ issued, and cause submitted upon oral argument, and petitioner's motion for judgment on the pleading. Writ quashed.

This is an original proceeding under the habeas corpus act, whereby petitioner seeks to obtain the custody of a female child named Aeriel Hartman. The child was about six years of age at the time this proceeding was instituted.

The petitioner, Luella Hartman, is a resident of Wyandotte county, Kan., and is the grandmother of the child. The mother of the child is dead. The respondent E. L. Mathias is the probation officer of the juvenile court of Jackson county, Mo. Respondents Gothard E. and Mabel W. Henry are husband and wife, residing in Jackson county, Mo., and now have the custody of the child by virtue of a judgment of the juvenile court of Jackson county, Mo.

In the year 1916, proceedings were had in the juvenile court of Wyandotte county, Kan., and said court found that said child was a dependent and neglected child, that its mother was dead, and that the child's father, Dr. Milo E. Hartman, was not a proper person to rear the child. The court thereupon appointed the grandmother, the petitioner herein, the guardian of said child, and placed the custody of said child with said grandmother. Later, and on October 25, 1918, said grandmother (petitioner herein) adopted said child by and with the written consent of the child's father.

On June 9, 1917, respondent E. L. Mathias, then the probation officer of the juvenile court of Jackson county, Mo., found said child in a neglected condition on the streets of Kansas City, Mo., and said E. L. Mathias made the proper complaint to the juvenile division of the circuit court of Jackson county, Mo.

On the 25th and 26th of February, 1919, a trial of the cause was had in the juvenile division of the circuit court of Jackson county, Mo., then presided over by Hon. Allen C. Southern. At that hearing both Milo E. Hartman, the father of the child, and Luella Hartman, the Kansas guardian and grandmother of the child (petitioner herein), appeared in person and were represented at the trial by counsel. Upon a full hearing said court entered a judgment in the matter which is in part as follows:

"The evidence herein being concluded, and the court being fully advised in the premises finds the allegations in the complaint or petition, filed on June 9, 1917, true; and that Aeriel Hartman was at the time a neglected child in Kansas City, Jackson county, Mo., under the statutes of the state of Missouri, providing for neglected children, and that her father, Dr. Milo E. Hartman, was not then, nor has not been since, and is not now a proper person to have custody of said child, Aeriel Hartman, and that the grandmother, Luella Hartman, was not then, and has not been since, and is not now, a proper person to have custody of the child, Aeriel Hartman.

"The child, Aeriel Hartman, is made a ward of the juvenile court of Jackson county, Mo. And the court finds that Gothard E. Henry and Mabel W. Henry, his wife, are fit and proper persons to have custody Of said child for the present time; and the child, Aeriel Hartman, is remanded to them for such custody until the further order of the juvenile court of Jackson county, Mo."

Thereupon and on the 10th day of April, 1919, petitioner filed the application here for the writ of habeas corpus. The writ was duly issued by this court on the 26th of April, 1919, and thereafter respondents filed their return herein.

Divers motions have been made by the respective parties, but the cause was finally submitted upon oral argument and the motion of petitioner for judgment on the pleadings. Upon the issues thus formed, the case will be determined. Any further facts necessary to an understanding of the questions involved will be stated in the course of the opinion.

Frans E. Linguist, of Kansas City, for petitioner.

Sebree, Conrad & Sebree, of Kansas City, for respondents.

WILLIAMS, J. (after stating the facts as above).

From the foregoing facts it appears that the child sought to be released by our writ is held in custody by the...