In re Parker

• Decision Date: 20 March 1907
• Citation: 56 S.E. 878,144 N.C. 170
• Parties: In re PARKER.
• Court: North Carolina Supreme Court

56 S.E. 878

144 N.C. 170

In re PARKER.

Supreme Court of North Carolina

March 20, 1907

Appeal from Superior Court, Duplin County; E. B. Jones, Judge.

Application by Egbert Hardy for habeas corpus for the custody of Samuel Parker. From a judgment denying the writ, relator appeals. Affirmed.

A writ of habeas corpus for the custody of a child 11 years old will not issue on behalf of its guardian, where it does not appear that the child is detained against its will, but is well cared for by the person having its custody, who took it at birth and has cared for it ever since at her own expense, and her character and that of her husband is good, and the training given to the infant is such that it would be to its best interest to remain in her custody.

Stevens Beasley & Weeks, for appellant.

W. S O'B. Robinson, for appellee. cLARK, C.J.

The petitioner, Egbert Hardy, was on December 12, 1905, on his ex parte application, appointed guardian of his nephew, Samuel Parker, an infant without property. The mother of said Samuel died at his birth, and the child was taken by his aunt, Mrs Swinson, with whom he has been ever since, and with whom he still remains. The child's father died a year after its mother. Notice of the application for guardianship should have been given to Mrs. Swinson and other relatives, as required by Revisal 1905, § 1772. Failure to do this is an irregularity which does not render void the appointment of guardianship; but certainly such appointment, being without notice to the relative then in charge of the infant, is not binding upon her. She had no opportunity to oppose the order appointing the guardian, nor to appeal from it, and it is not a decree disposing of the custody of the child as against her. Besides, "it is well settled that the right of guardianship cannot be tried on habeas corpus" (15 A. & E. [ 2d Ed.] 184); nor "to determine the right of guardianship"; nor "to decide as to conflicting rights to personal custody." Id. 156. The petition set out sufficient matter to cause the writ to issue, but, upon the investigation, it did not appear that the child was detained against its will, and the court found as facts that the child is about 11 years of age, is well cared for by Mrs. Swinson, who took the infant at its birth and has cared for and nurtured it ever since at her own expense; that the guardian has contributed nothing to that end; that the child is sent to school; Sabbath school, and taken to church regularly; and that the character of his aunt and of her husband is good, and the care and training given by them to the infant Samuel Parker are such that it would be to the best interest of said infant for him to remain in the care and keeping of his said aunt and her husband. There being no illegal restraint shown upon the above findings, the court properly remanded the infant to the custody of his aunt.

The object of the writ of habeas corpus is to free from illegal restraint. When there is none, the writ cannot be used to decide a contest as to the right custody of a child, except when the contest is between the parents of the child. Revisal 1905, § 1853; State v. Cheeseman, 5 N. J. Law, 511; State v. Clover, 16 N. J. Law, 419; Foster v. Alston, 7 Miss. 406, and numerous other cases cited in 15 A. & E. (2d Ed.), in note 2, p. 156, and in note 2, pp. 184, 185, 186, and notes. The rule is clearly stated by Chancellor Kent. In Wollstonecraft's Case, 4 Johns. Ch. (N. Y.) 80, he says that the sole function of the writ in such cases is "to release the infant from all improper restraint, and not to try, in this summary way, the question of guardianship, or to deliver the infant over to the custody of another; that it is only to deliver the party from illegal restraint, and, if the infant is competent to form and declare an election, then to allow the infant to go where it pleases, and, if too young to form a judgment, then the court is to exercise its judgment for the infant." In short, the writ of habeas corpus cannot be used as a claim and delivery of the person. The guardian must assert his right to the custody of his ward by a civil action against the persons now in charge of him, while they, in turn, if so advised, can take appropriate steps to set aside the guardianship. In this summary proceeding by habeas corpus, the court can only consider the rights of the child, whether he is under illegal restraint or not, and, if he is not, the court will follow the course laid down by Chancellor Kent quoted supra.

Affirmed.

HOKE, J. (concurring).

I concur in the disposition made of this case, for the reason that the placing of the child was in the sound legal discretion of the court; and that, on the facts presented such discretion was properly exercised when the child was left in the control and custody of its aunt, Mrs. Swinson. If, as the principal opinion assumes, the appointment of Egbert Hardy as guardian was only irregular, then such appointment is not...