Hayes v. Strauss

• Decision Date: 20 September 1928
• Citation: 144 S.E. 432
• Parties: HAYES. v. STRAUSS.
• Court: Virginia Supreme Court

144 S.E. 432

HAYES.

v.STRAUSS.

Supreme Court of Appeals of Virginia.

Sept. 20, 1928.

Error to Circuit Court, Wise County.

Habeas corpus proceeding by Steve Strauss against Charlotte Hayes. Judgment for plaintiff, and defendant brings error. Modified and affirmed.

R. T. Irvine, of Richmond, for plaintiff in error.

HOLT, J. This is a habeas corpus proceeding brought to determine the proper custody of William Stevenson Hayes, a bastard colored infant, born January 9, 1926. Its mother, Carlsetta Hayes, died November 18, 1926. After her death, Charlotte Hayes, the mother of Carlsetta, because of temporary conditions, consented that Scott Strauss and his wife, Kate, father and mother of the petitioner, might take and keep the child until the following spring. This they did. In June following the grandmother applied to Judge Camblos, of the juvenile and domestic relations court, for authority to take their child back. A warrant, the exact purpose of which is not shown, was issued and served on Scott Strauss and wife, but was afterwards dismissed for want of jurisdiction. Then "Judge Camblos, without having any legal proceedings brought, directed Scott Strauss and his family to return the child to Charlotte Hayes, which they did."

In August, 1926, Charlotte swore out a warrant before the mayor of the town of Big Stone Gap, and under that authority the town sergeant took this child from the father and restored it to the grandmother, Charlotte. She was duly appointed guardian by an order of the circuit court of Wise county of date July 7, 1927.

It will be observed that we are not dealing with a dependent, abandoned, or delinquent child, whose care had been taken over by the juvenile court. There was never any order awarding its custody to the grandmother, and her rights, such as they are, rest upon no such order, but upon the provisions of section 5320 of the Code of Virginia, which in turn are themselves, by express language, subject to the superior rights of the father and mother. This authority, conferred by statute, is limited to those named in the statute, and does not extend to grandparents. Mathews v. Wade, 2 W. Va. 464. These statutory rights must of course be respected, but, as was said in Fleshood v. Fleshood, 144 Va. 767, 130 S. E. 648:

"Many citations might be added but through them all runs the fixed purpose to advance the interest of the child. This is ever the dominant consideration."

While the power is not lightly to be exercised, courts do not hesitate to take an infant from both the father and mother when its interest requires such action, and for a stronger reason this authority may be asserted in the case of a guardian.

The evidence shows that Carlsetta, before her death, requested that her baby be given to Steve Strauss, whom she recognized as his father. We have already seen how its custody was dealt with after the mother's death. It appears that this father is an industrious young negro, of good habits, steadily employed by the Southern Railway at a salary of $140 a month. His father and mother, with whom the child would actually live, and who are anxious to take it, have a comfortable home, worth about $3,000. Respondent is a cook, working for $40 a month. She also has a home, but is necessarily away from it much of her time. When absent, the child is left in the care of a daughter between 15 and 16 years old, who is accustomed to roam the streets, and whose character has been questioned.

In our approach, certain principles are to be remembered.

"The judgment of a court of competent jurisdiction is always presumed to be right until the contrary is shown, and a party in an appellate court, alleging error in the court below, must show it in the regular way, or the presumption in favor of its correctness must prevail." Harman v. City of Lynchburg, 33 Grat. (74 Va.) 43; Day v. Grove, 142 Va. 550, 129 S. E. 368.

It is likewise true that, when a case is submitted to a judge who sees the witnesses and hears them testify, his judgment is entitled to the utmost consideration, and is usually accorded all the force of a jury's verdict. Newton v. White, 115 Va. 845, 80 S. E. 561.

Many cases hold that this rule should be relaxed in habeas corpus proceedings, and that they should be heard by appellate courts on their merits. People v. Bolton, 27 Colo. App. 39, 146 P. 489; Moore v. Hughes, 87 W. Va. 722, 106 S. E. 35; Garfinkle v. Sullivan, 37 Wash. 650, 80 P. 188, and 29 C. J. § 228. Of course, in any circumstances, it is necessary to show that the judgment is against the weight of the evidence, which is but another way of saying that the burden is upon the...