Hurley v. Hurley

Citation76 S.E. 438,71 W.Va. 269
CourtSupreme Court of West Virginia
Decision Date12 November 1912
PartiesHURLEY. v. HURLEY et al.

76 S.E. 438
71 W.Va. 269

HURLEY.
v.
HURLEY et al.

Supreme Court of Appeals of West Virginia.

Nov. 12, 1912.


(Syllabus by the Court.)

1. Habeas Corpus (| 113*)—Pleading—Replication to Return.

In habeas corpus, the want of a replication to the return is not ground for reversal when the court or judge has heard the matter on evidence as though the return was denied.

[Ed. Note.—For other cases, see Habeas Corpus, Cent. Dig. §§ 102-115; Dec. Dig. § 113.*]

2. Habeas Corpus (§ 99*)—Custody or Minor.

The father is legally entitled to the custody of his infant child, if fit for the trust, and the same should not be denied him unless the child's welfare or other considerations clearly outweigh his legal right.

[Ed. Note.—For other cases, see Habeas Corpus, Cent. Dig. § 84; Dec. Dig. § 99.*]

Error to Circuit Court, Harrison County.

Application of Peter Hurley for writ of habeas corpus to Mary Ellen Hurley and others. Writ granted, and defendants bring error. Affirmed.

Edward G. Smith and Stephen G. Jackson, both of Clarksburg, for plaintiff in error.

Cato & Bledsoe, of Charleston, for defendant in error.

ROBINSON, J. The writ of error herein lies to a judgment in habeas corpus proceedings, giving to Peter Hurley the custody of his infant son. It will serve no purpose to detail the facts—sentimental and romantic though they be—out of which the proceedings arose. The story is an old one, of a marriage, a child, a separation, and a determined effort on the part of each parent to deprive the other of the custody of the offspring.

The writ issued against Mary Ellen Hurley, the mother of the child, and F. M. Ash-craft, its step great grandfather, who had been appointed its guardian, though the child had no estate. Both of these parties made due return to the writ. The mother disclaimed that she had the custody of the child and averred that It was in the custody of its duly appointed and qualified guardian. The guardian made return that the child was lawfully in his custody, averring that the father had abandoned the child, and that in any event he was wholly unfitted to have its custody by reason of immorality and other shortcomings on his part.

As to the matters arising on the writ and the returns thereto, the court heard verbal testimony of witnesses for both the petitioner and the guardian, together with one deposition for the latter. A decree of divorce and the record on which the same was based, in a suit by Mary Ellen Hurley against Peter Hurley, was also considered. The decree of divorce had been obtained shortly prior to...

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