Hurley v. Hurley

• Court: Supreme Court of West Virginia
• Writing for the Court: ROBINSON
• Citation: 76 S.E. 438,71 W.Va. 269
• Parties: HURLEY. v. HURLEY et al.
• Decision Date: 12 November 1912

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 the trial of the proceedings in habeas corpus. The grounds alleged for the divorce were cruel and inhuman treatment. The decree was obtained in the absence of the defendant and merely on order of publication. Though the custody of the child was sought by the mother in the divorce suit, the decree was silent in that regard.

Respondents submitted themselves to a trial of the matters arising on the returns, notwithstanding those matters were not traversed by replications. Now they insist that the facts alleged in the returns were conclusive because they were not denied. Though the case was tried as if replications to the returns were in, they would have the court reverse merely for the want of replications. We concede that the matters set up in the returns, without more, would suffice to deny the judgment. But the court heard more. It heard proof in denial of the matters on which respondents relied. If the case had rested on the returns simply, the judgment would be clearly wrong. They were complete answers denying that which petitioner sought. Brand v. Swindler, 68 W. Va. 571, 70 S. E.

[76 S.E. 439]

362. However, when the case has been tried as though the returns were denied, we should not be so technical as to reverse and remand merely for an opportunity to put in that which really was considered as in.

It is true that trial by jury without issue joined is error for which the judgment will be reversed. Shires v. Boggess, 68 W. Va. 137, 69 S. E 466. We are not willing, however, to carry that common law principle further and apply it in proceedings like those under consideration. The principle did not originally apply in habeas...