Jain v. Priest

CourtUnited States State Supreme Court of Idaho
Citation164 P. 364,30 Idaho 273
PartiesCHARLES JAIN and JESSIE JAIN, His Wife, and W. E. TIPTON and NELLIE TIPTON, His Wife, Appellants, v. WILLIAM PRIEST and MARIE PRIEST, His Wife, Respondents
Decision Date31 March 1917

HABEAS CORPUS-JUDGMENT OF DISTRICT COURT APPEALABLE-JURISDICTION OF SUPREME COURT TO MAKE WRIT RETURNABLE BEFORE ANY DISTRICT COURT-CUSTODY OF CHILDREN-EVIDENCE-PRIVILEGED COMMUNICATIONS-GUARDIANSHIP OF MINOR BY BENEVOLENT CORPORATION-BY PARENTS-AUTHORITY FOR ORDER OF ADOPTION-JURISDICTION OF PROBATE COURT-NOTICE OF PROCEEDINGS-CONFLICT OF EVIDENCE.

1. The judgment of a district court in a habeas corpus proceeding involving the custody of a child, is appealable.

2. The supreme court is authorized to make a writ of habeas corpus issued by it returnable before any district court.

3. Where children have been removed from the custody of their parents by the probate court because of certain faults of the parents, specified in the findings and order of the court and the question as to whether the parents have overcome these faults and permanently reformed arises in a subsequent proceeding by which the parents attempt to regain the custody of the children, the material evidence is evidence as to the conduct of the parents since the children were taken from them, and the exclusion of evidence of their conduct before that time on the ground of immateriality is not error.

4. Even if certain testimony of a physician should have been excluded on the ground of privileged communication, still the admission of it is not reversible error where the patient who was also a witness, testified on her cross-examination to substantially everything to which the doctor testified. As to whether the testimony should have been admitted over the objection of appellant, there being nothing in the record to show that the witness expressly consented that the testimony might be given, quaere.

5. When a benevolent or charitable corporation is made the guardian of a child by order of the probate court under the provisions of an act of the 10th session, approved March 6, 1909, Sess Laws 1909, p. 38, the probate court has the same control over such corporation as guardian as over any other guardian. Such guardianship may be terminated by said court in the same manner in which any other guardianship may be terminated.

6. While such corporation may voluntarily resign the guardianship or apply to the court for permission to surrender the children to the parents, the ultimate decision as to whether the guardianship shall be terminated or the children surrendered to the parents is with the probate court in each case.

7. Whenever it appears to the probate court on application of the ward or otherwise that the guardianship is no longer necessary, it may be terminated. Reasonable notice of the proceedings and termination of the guardianship should be given the guardian.

8. That certain order made by the probate court for Shoshone county in this case on October 2, 1915, has the force and effect of an order terminating the guardianship of the Idaho Children's Home Finding and Aid Society. Under the facts of this case the society had sufficient notice of the proceedings to be bound by such order.

9. Such benevolenet or charitable corporation, as guardian of minor children, has no authority to consent to their adoption when the children are not surrendered to it by the parents, but are committed to it as guardian by the probate court in a proceeding by which they are taken from the parents without their consent.

10. Under sec. 2703, Rev. Codes, a probate judge is not authorized to make an order of adoption of children without the consent of their parents, on the ground that such parents have been judicially deprived of their children on account of neglect, unless it appears in the record before such judge that such is a fact.

11. A probate judge is not authorized to make an order of adoption of children without the consent of the parents on the ground that the parents have been judicially deprived of the custody of their children on account of neglect, unless it appears in the record before him that the parents have been permanently and absolutely deprived of such custody by a final and unconditional judgment of a court. An order of a probate court temporarily depriving the parents of the custody of their children, but granting them an opportunity to reclaim the children upon a proper showing of reform, is not such a judgment as dispenses with the necessity for the consent of the parents to an adoption proceeding.

12. That certain order of the probate court of Shoshone county in this case made on October 2, 1915, by which the children of appellants were removed from their custody and committed to the custody of the Idaho Children's Home Finding and Aid Society, as guardian, does not permanently and absolutely deprive the parents of the custody of their children, and is not such a final and unconditional judgment as dispenses with the necessity of the consent of the parents to adoption proceedings.

13. As to whether the parents must in all cases be notified of adoption proceedings in order to make the same binding upon them, quaere.

14. The parents of minor children, being themselves competent to transact their own business, and not otherwise unsuitable are entitled to the guardianship and custody of said children. (Rev. Codes, sec. 5774.)

15. There being a substantial conflict in the evidence as to whether the parents have reformed and are now suitable persons to have the custody of their minor children, the findings of the district court in favor of the appellants on that point will not be disturbed by this court on appeal.

[As to the custody of children and to whom it should be awarded under habeas corpus, see note in 20 Am.Dec. 330]

APPEAL from the District Court of the First Judicial District, for Shoshone County. Hon. William W. Woods, Judge.

On application of William Priest and Marie Priest, writs of habeas corpus were issued out of this court for William Priest and Ruth Priest, minor children of said applicants, and made returnable in the District Court of the First Judicial District. Appeal is taken from the judgment of that court ordering the children returned to their parents. Affirmed.

Affirmed.

John Nisbet, for Appellants.

The children's welfare is the guiding star. (Adrino v. Yates, 12 Idaho 618, 87 P. 787; Schiltz v. Roenitz, 86 Wis. 31, 39 Am. St. 873, 56 N.W. 194, 21 L. R. A. 483; Jacob v. Sheets, 99 Ind. 328; In re Hamilton, 66 Kan. 754, 71 P. 817; Filbert v. Schroeder, 37 Neb. 571, 56 N.W. 307; Rice v. Rice, 21 Tex. 58; In re Hickey, 85 Kan. 556, 118 P. 56, 41 L. R. A., N. S., 564; In re Sharp, 15 Idaho 120, 96 P. 563, 18 L. R. A., N. S., 886.)

The probate court of Shoshone county made an order removing the Children's Home Finding and Aid Society from its guardianship, ex parte, and without in any manner notifying the guardian of such proceedings. Before this order could be binding on the society it would be necessary for the children to be in Shoshone county at the time of the filing of the petition; there must be a complaint to the probate court and a showing that the children are not being properly cared for; the guardian must have a reasonable notice of the proceeding. (In re Sharp, 15 Idaho 120, 96 P. 563, 18 L. R. A., N. S., 886; 1909 Sess. Laws, sec. 1, subn. (d), p. 39.)

Under sec. 2703, Rev. Codes, the guardian could consent to the adoption of the children, since the parents had been deprived of the children on account of their neglect of the children and their immoral conduct. (In re McRae, 189 N.Y. 142, 12 Ann. Cas. 505, 81 N.E. 956.)

Featherstone & Fox, for Respondents.

The jurisdiction of the supreme court in issuing a habeas corpus writ pursuant to its constitutional and statutory authority is not limited to the jurisdiction of the district where the children are. (People v. Booker, 51 Cal. 317.)

The probate courts are courts of original jurisdiction in the matter of guardianship (In re Sharp, 15 Idaho 120, 96 P. 563, 18 L. R. A., N. S., 886; secs. 3840, 3842, 3810, Rev. Codes), and courts of record. (Dewey v. Schreiber Implement Co., 12 Idaho 280, 85 P. 921.)

An order for adoption is not a judgment. (In re Williams, 102 Cal. 70-76, 41 Am. St. 163, 36 P. 407; Estate of Camp, 131 Cal. 469, 82 Am. St. 371, 63 P. 736; Estate of Stevens, 83 Cal. 322, 17 Am. St. 252, 23 P. 379.)

It is only in cases of the most imperative necessity where it appears that serious and permanent detriment to the rights and interest of the child are threatened, that courts will deprive the father and mother of the custody of the children. (In re Wilson (N. J.), 55 A. 160, 162; Markwell v. Pereles, 95 Wis. 406, 69 N.W. 798; Terry v. Johnson, 73 Neb. 653, 103 N.W. 319; Van Auken v. Wieman, 128 Iowa 476, 104 N.W. 464.)

Where the evidence is conflicting, a finding will not be disturbed. (Cameron Lumber Co. v. Stack-Gibbs Lumber Co., 26 Idaho 626, 144 P. 1014; Jensen v. Bumgarner, 28 Idaho 706, 156 P. 114; Pomeroy v. Gordan, 25 Idaho 279, 137 P. 888; Wolf v. Eagleson, 29 Idaho 177, 157 P. 1122.)

An order appointing a guardian, or for the custody of a child, is temporary. (29 Cyc. 164; Turner v. Turner, 93 Miss. 167, 46 So. 413; McGough v. McGough, 136 Ala. 170, 33 So. 860; Patten v. Shapiro, 154 S.W. 687.)

Due process of law demands notice and an opportunity to be heard. (Mix v. County Commrs., 18 Idaho 695, 112 P. 215, 32 L. R. A., N. S., 534; Eagleson v. Rubin, 16 Idaho 92, 100 P. 765; Ex Parte Martin, 29 Idaho 716, 161 P. 573; Scott v. McNeal, 154 U.S. 34-51, 14 S.Ct. 1108, 38 L.Ed. 896; Sullivan v. People, 224 Ill. 468, 79 N.E. 695; Ex parte Livingston, 151 A.D. 1, 135 N.Y.S. 328.)

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34 cases
  • Andersen, Matter of
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    ...corpus proceeding. Finn v. Rees, 65 Idaho 181, 141 P.2d 976 (1943); Vaughn v. Hubbard, 38 Idaho 451, 221 P. 1107 (1923); Jain v. Priest, 30 Idaho 273, 164 P. 364 (1917); In re Martin, 29 Idaho 716, 161 P. 573 (1916). See In re Hendrickson, 159 Mont. 217, 496 P.2d 1115 (1972); 2 Am.Jur.2d Ad......
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