In re Klein

• Citation: 70 N.W. 64,95 Wis. 246
• Parties: IN RE KLEIN.
• Decision Date: 02 February 1897
• Court: United States State Supreme Court of Wisconsin

95 Wis. 246

70 N.W. 64

IN RE KLEIN.

Supreme Court of Wisconsin.

Feb. 2, 1897.

Appeal from circuit court, Sheboygan county; N. S. Gilson, Judge.

Petition by Ira A. Bean for the appointment of a guardian of Gertrude Klein, an infant. From an order appointing the petitioner such guardian, etc., Nicholas Klein and Gertrude Brosie appeal. Affirmed.

On the 21st of November, 1894, Ira A. Bean presented to the judge of the circuit court for Sheboygan county a petition in that court, while said judge was holding court in Fond du Lac county, representing that Gertrude Klein, a minor, born March 5, 1890, was residing in the county of Sheboygan; that Nicholas Klein, her father, an habitual drunkard, residing in the city of Sheboygan, was not a fit and proper person to have the care and custody of said minor, and that she had been taken from his custody by order of the county judge of Sheboygan county, pursuant to section 4587b, Sanb. & B. Ann. St.; that the mother of said minor was dead, and that on or about October 20, 1894, it was given to the custody of the petitioner by the humane agent of the city of Sheboygan, and had ever since been in his care and custody; that petitioner and his wife had become very much attached to said child, and said child to them; that he had no children, and was able and desirous of keeping said child, and providing her with a good home; that while said child was in his care and custody the county judge of Sheboygan county made an order that she be turned over to another person; that, other than the home of the petitioner, said child had no home and no relative who was willing or able to provide her with a home; that the personal estate of the minor did not exceed $50 in value, and that she had no real estate; that, to protect and preserve the legal rights of said minor, and to provide for her future welfare, it was necessary that some proper person be appointed guardian of her person and estate, during her minority,--and prayed that he be appointed accordingly. A hearing of said petition was ordered to be had at a term of said court to be held at the courthouse in Fond du Lac, December 3, 1894, and that 10 days' previous notice be given to Nicholas Klein, the father, of the time and place of such hearing. At the time and place appointed, Nicholas Klein, the father, appeared, and demurred to the petition, and objected to the jurisdiction of the court, that the petition failed to state facts sufficient to give the court jurisdiction, and that the county court for Sheboygan county was the proper court to act in the matter, in which court a petition had been filed for the adoption of said minor, and also that an order had been made, July 24, 1894, by the county judge of that county, awarding the custody of said infant to suitable parties, namely, its grandparents; that on the 24th of October, 1894, said county judge, upon hearing, upon due notice, made a supplemental order, awarding the custody of said infant to a proper person other than her father; and that thereafter, on the 22d of November, 1894, and before service of the notice of hearing of the present petition, the county judge, after due notice and hearing, made a further supplemental order, awarding the custody of said infant to another proper and suitable person, to wit, Mrs. Gertrude Brosie, an aunt of said infant, residing in Sheboygan, Wis.,--and it was insisted that, at the time of filing the petition in this matter, the county judge of Sheboygan county had acquired, and still retained, full and complete jurisdiction and custody of the person of said infant, and no appeal or other proceeding had been taken to reverse or set aside such proceedings so relied on. The court overruled the demurrer, and the said Nicholas Klein answered, setting up the proceedings before the county judge and in the county court, and alleging that the custodian last named, Gertrude Brosie, was a competent and suitable person to have the care, custody, and education of said infant. A trial of the issue was commenced in the circuit court at Fond du Lac, and subsequently completed in the circuit court at Manitowoc, in an adjoining county, February 12, 1895. At the trial Gertrude Brosie intervened, and participated in the proceedings. The court found, substantially, that the allegations of the petition were true; that said infant was removed from the custody of Nicholas Klein because he was an habitual drunkard, and not a fit person to have its care or custody; that said Gertrude Brosie was not a fit or suitable person to be appointed its guardian; that the petitioner, since October 27, 1894, had had the care and custody of said infant, and was a fit and suitable person to be appointed such guardian,--and he was accordingly appointed guardian of the person and estate of said infant. Said Nicholas Klein and Gertrude Brosie appealed from the order. At the hearing in the circuit court, the proceedings before the county judge of Sheboygan county, and also in the county court for that county, were produced in evidence by the respondents, and evidence was given to show that Nicholas Klein was an habitual drunkard, and not a fit or suitable person to have the care and custody of said infant. The testimony was mainly directed to the question whether Mrs. Gertrude Brosie was a fit and suitable person for that purpose, and on this subject it was conflicting.

D. T. Phalen and L. J. Nash, for appellants.

C. H. Maynard and Francis Williams, for respondents.

PINNEY, J. (after stating the facts).

The proceedings before the county judge of Sheboygan county, by which Nicholas Klein was deprived of the custody of his infant daughter, Gertrude, and she was given into the custody of Mr. and Mrs. John Thomas, her maternal grandparents, and the succeeding orders, made by said county judge, changing such custody (1) to Mr. and Mrs. Blenski and (2) to Mrs. Gertrude Brosie, did not constitute any valid objection to the jurisdiction of the circuit court to hear and determine...