In re Dowling

• Decision Date: 22 February 1896
• Parties: IN RE DOWLING
• Court: Idaho Supreme Court

43 P. 871

4 Idaho 715

IN RE DOWLING

Supreme Court of Idaho

February 22, 1896

JUDGE-HABEAS CORPUS-ORDER FOR CARE AND CUSTODY DURING PENDENCY OF PROCEEDING-SIGNATURE OF CLERK AND SEAL OF COURT-CONTEMPT.-The district judge at chambers has all the powers of a court in habeas corpus proceedings. Under the provisions of section 8361 of the Revised Statutes the judge may issue an order for the temporary care and custody of the person alleged to be illegally restrained of his liberty, to continue until the hearing of the application for the writ of habeas corpus. Such order need not be issued by the clerk under the seal of the court. The signature of the judge is sufficient. The statutes in regard to the writ of habeas corpus must be liberally construed with a view to effect their object and promote justice.

(Syllabus by the court.)

APPLICATION for writ of habeas corpus. An original proceeding in supreme court.

Writ denied.

No brief filed.

SULLIVAN J. Morgan, C. J., and Huston, J., concur.

OPINION

SULLIVAN, J.

This is an application for a writ of habeas corpus. The facts are substantially as follows: Mrs. Della Dowling made application to Honorable D. W. Standrod, judge of the fifth judicial district of Idaho for a writ of habeas corpus to procure the custody of her two year old infant daughter, Eva Estella Dowling. She alleges in her petition for said writ that said child is the daughter and only child of the petitioner; that from the birth of said child to the twenty-eighth day of December, 1895, said infant had not been separated from the petitioner; that the mother's care was indispensably necessary for the welfare of said infant, and that the separation from its mother greatly endangered its health; that the petitioner was married to James J. Dowling, the father of said infant, at Salmon City, Idaho on the fifth day of October, 1892, and from that time until the twenty-fourth day of December, 1895, she lived and cohabited with said James J. Dowling; that on the last-mentioned date she was obliged to take said child, and leave her said husband, and go and reside with her mother, in said Salmon City, because of the cruel and barbarous treatment of her said husband; that he was abusive, insulting, and violent in his deportment toward the petitioner, and applied opprobrious epithets to her, charging her with infidelity and unfaithfulness, and threatened her life and that of said child; that her sufferings were so great while she remained in his society and under his control that her condition became intolerable and her life a burden, and she was compelled and forced thereby to withdraw from her said husband's home on the twenty-fourth day of December, 1895; that, by reason of such conduct on the part of her said husband, she would have, long prior to said date, separated from him, but was restrained, and submitted to all his cruelties because of womanly, wifely, and motherly reluctance to involve her said family in a public exposure of the distressing life she had led, and the abuse she had endured; that since leaving her husband she has been residing with her mother, and under her protection, apart from her said husband, in said Salmon City; that on the twenty-sixth day of December, 1895, her said husband came to the home of her said mother, Mrs. Melvina J. Nashold, and by force and violence, and against the wish, and in spite of the express prohibition, of the petitioner, carried away said infant, and now wrongfully and unlawfully restrains and keeps her in a house situated in the suburbs of said Salmon City; that said house is occupied by said James J. Dowling and one William Neal, a saloon keeper; that those two persons are the only occupants of said house, and in care of said infant; that said Neal is charged with a crime, and now under bail; that, during the absence of said Dowling from said house, said Neal has said child in his sole care and custody; that said Dowling is under bonds to keep the peace, and during the trial of that matter the said infant was kept in the town jail of Salmon City; that said infant is in delicate health, subject to fits of croup, and that its general welfare, its health, and its life depend upon the immediate care of a mother, "and that your petitioner is able to provide a suitable home for said child, to administer to its wants, and is willing to devote her time to its welfare"; that said James J. Dowling has threatened to kill said infant, and has threatened to remove said child from Lemhi county, and that the petitioner believes said child may suffer irreparable injury before compliance with a writ of habeas corpus can be enforced; that, by reason of sickness and infirmity incident to tender years of infancy, the said child could not be taken on a distant journey, in the winter season, without great danger. The petitioner then states facts tending to show illegal detention and confinement of said infant, and asks that the child be delivered to the petitioner.

On presentation of said petition to the Honorable D. W. Standrod, judge of the fifth judicial district, he made an order in writing setting forth substantially the facts contained in said petition, and directed that, upon the service of the same on said James J. Dowling, he deliver said child into the custody of the sheriff of said Lemhi county, and that said sheriff deliver said child into the custody of the petitioner. And it was further ordered that, upon the failure of said Dowling to deliver the said child to said sheriff, the sheriff was directed to immediately take said child from the custody of said Dowling, and deliver it to its mother, the petitioner, to be by her kept and maintained until the hearing of the said petition, which hearing was fixed for January 21, 1896. Said order was signed by the district judge, but not issued by the clerk under the seal of the court. Said order was placed in the hands of the sheriff of Lemhi county for service on the thirteenth day of January, 1896; and thereupon the said sheriff proceeded to and did serve the same upon the said James J. Dowling, and then and there demanded the possession of said child, which was refused by said Dowling. Thereafter said Dowling consulted his attorney, and after so doing served the following written notice on the sheriff:

"To John Miller, Sheriff of Lemhi County, Idaho.

"Dear Sir: I hereby notify you that I fail and refuse to surrender to you the custody of my infant child, Eva Estella Dowling under the order of the Hon. D. W. Standrod, judge, dated at chambers at Pocatello, Idaho on January 11, 1896. I also notify you that the said order is void, for the reason that the said judge at chambers has no jurisdiction or power to make said order, and for the further reason that the said order, which is, in effect, if anything, a process is void for the reason that it is not issued in the name of the state of Idaho nor in the name of the people of the state of Idaho and for the further reason that it was not issued by the clerk of the court, under the seal of the court, as required by section 8370 of the Revised Statutes of Idaho. Said order is without authority; arbitrary, despotic; without warrant in law; made without the protestant being heard, or having a chance to be heard; was not made in any civil action then or now pending; and is in no sense a writ of habeas corpus, or authorized in a habeas corpus proceeding. I forbid you taking charge of my said child under said order, and warn you that if you do so, you will do so at your peril, and that I will hold you responsible for any consequences that may result, and for all damages that may come to me, by reason of such unwarranted seizure, should same be made by you. I act in this matter advisedly, declining to obey the said order...