Herndon v. Bonner

• Decision Date: 13 June 1910
• Citation: 97 Miss. 328,52 So. 513
• Court: Mississippi Supreme Court
• Parties: JOHN R. HERNDON ET AL v. THOMAS P. BONNER, GUARDIAN

52 So. 513

97 Miss. 328

JOHN R. HERNDON ET AL v. THOMAS P. BONNER, GUARDIAN

Supreme Court of Mississippi

June 13, 1910

March 1910

FROM the circuit court of, second district, Jones county, HON ROBERT L. BULLARD, Judge.

Bonner guardian, appellee, was plaintiff in the court below; Herndon and wife, appellants, were defendants there. From a judgment in plaintiff's favor, defendants appealed to the supreme court. The facts as stated by ANDERSON, J., were as follows:

"This is a habeas corpus proceeding by the appellee, Thomas B Bonner, guardian of Inel Bonner, a girl twelve years of age, and Eugene Bonner, a boy ten years of age, their uncle, against the grandfather and grandmother of said minors, John R. Herndon and his wife, appellants, for their custody. The writ was made returnable before the circuit judge, who rendered judgment awarding their custody to the guardian, Thomas B. Bonner, from which this appeal is prosecuted by the grandparents.

"The petition for the writ alleges that the petitioner, Thomas B. Bonner, had been legally appointed guardian by the chancery court of Jones county of the persons and estates of these infants, with the right to the custody of both; that their mother and father were dead, and he permitted them to spend the summer of 1909 with their grandparents at their home in Sandersville, Jones county (Bonner's home being at Laurel, in said county); that, when the time approached for their return to his home to enter school, Mr. and Mrs. Herndon, appellants, refused to give them up, detaining them with force, violence, and threats. In their answer the Herndons admit the substantial allegations of the petition, and to justify their detention of the children charge that Bonner is unfit to have their custody, care, and education, and they set out the reasons therefor. On the trial the only testimony admitted by the judge was the decrees of the chancery court of Jones county appointing Bonner guardian for the infants, in which he is decreed to be guardian of their persons and estates. Respondents offered to introduce testimony to sustain their answer, which the court below declined to permit."

Affirmed.

Hall & Street, for appellants.

The circuit judge erred when he refused to hear testimony regarding the best interests of the wards. In cases of this kind the primary question is, the best interest of the ward. If the answer of the appellants is true the appellee is certainly not the proper party for the custody of the children. The court in adjudicating the custody of infants should certainly go into the proof and ascertain the best interest of the wards as to placing them with either the legal guardian or the nearest of kin; the court exceeded the law when it refused the hearing of testimony.

The court had no right to assume that the answer and showing of the appellants were untrue, without proof. The position of the court was that Code 1906, § 2409, prevented it hearing any testimony and necessitated it awarding the custody of the children to the appellee, who had been appointed by the chancery court of Jones county, guardian of both estate and person of the wards. This construction is entirely too technical. It may be that to permit the children to remain, or to be put into the custody of the appellee did not do them irreparable harm, but one can conceive of circumstances under which this...