Irving v. Irving

• Decision Date: 13 September 1901
• Citation: 66 P. 123,26 Wash. 122
• Parties: IRVIGN et al. v. IRVING.
• Court: Washington Supreme Court

66 P. 123

26 Wash. 122

IRVIGN et al. v. IRVING.

Supreme Court of Washington

September 13, 1901

Appeal from superior court, King county; E. D. Benson, Judge.

Action by J. H. Irving against Ruby E. Irving and another to obtain custody of his child. From a judgment awarding him such custody, and an order restraining defendant Ruby E. Irving from visiting the child, defendants appeal. Reversed.

G. Meade Emory and Tucker & Hyland, for respondent.

FULLERTON J.

On December 17, 1898, the appellant Ruby E. Irving obtained in the superior court of King county a divorce from the respondent, J. H. Irving, in the decree for which the custody of their minor child, who was then about 16 months old, was awarded to the respondent. In November 1899, the appellant Irving filed a petition in the court granting the decree of divorce to obtain a modification of the decree in so far as it affected the minor child, praying that its custody be awarded either to her or her foster mother, her co-appellant in this case. The defendant appeared, and took issue upon the allegations of the petition, and a hearing was had thereon, which resulted in a modification of the original decree; the court awarding the custody of the child to the foster mother, granting to each parent the right to visit the child at all proper and reasonable times. The order was entered on January 10, 1900. On the 15th of that month the defendant therein, the respondent here, served and filed a notice of appeal to this court from the order modifying the original decree and within five days thereafter filed an appeal bond conditioned as the statute requires. On the 12th of March following the respondent instituted the present proceeding. In his petition he set out his marriage with the appellant, the subsequent birth of the child in question, the decree of divorce, and the subsequent modification of that decree; that the mother of the child was immoral, and unfit to have the care and custody of the child; that the foster mother, to whom the child had been awarded by the modified decree, was unfit to have its care and custody; his marriage to another woman, and the acquirement by him of a fixed abode his fitness for care and custody of the child, and prayed that the court award to him such care and custody. The appellants, for answer to the petition, filed a plea in abatement, setting up, in substance, that the respondent had appealed from the order and judgment of January 10th; that the appeal had never been discontinued or dismissed, and was then pending in the appellate court; and that the questions presented and involved upon the appeal were the same questions presented by the petition then before the court. The respondent demurred to the plea, which demurrer the court...