Janes v. Cleghorn

• Decision Date: 31 January 1875
• Citation: 54 Ga. 10
• Parties: John W. Janes, plaintiff in error. v. Cicero C. Cleghorn, defendant in error.
• Court: Georgia Supreme Court

54 Ga. 10

John W. Janes, plaintiff in error. v. Cicero C. Cleghorn, defendant in error.

Supreme Court of the State of Georgia

January Term, 1875.

(Atlanta, January Term, 1875.)

Habeas corpus.Parent and child.Contracts.Before Judge Underwood.Floyd Superior Court.July Adjourned Term, 1874.

For the facts, see the decision.

C. Rowell; Dabney & Fouche; Smith & Branhdm, for plaintiff in error.

Alexander & Wright, for defendant.

WARNER, Chief Justice.

This was a writ of habeas corpus sued out by Janes against the defendant, Cleghorn, to obtain the possession of an infant child named Mary H. Scott, whom the petitioner alleges the defendant, Cleghorn, detains in his custody without lawful warrant or authority.Upon the return of the writ with the defendant's answer thereto, and after hearing the evidence submitted by the respective parties, the court ordered that the custody of the child should remain with the defendant, whereupon Janes, the petitioner, excepted.

There was a good deal of evidence introduced on the hearing before the court, the substantial points of which, in relation to the petitioner's claim, are as follows: The child in controversy is the only child of Captain Dunlap Scott by his second marriage, the father and mother of the child both being dead, the mother having died when the child was seven days old, and which is now three or four years old; the mother of the child and Mrs. Janes, the wife of the petitioner, had been intimate friends, and a short time before her death she expressed her desire that in the event of her death, Mrs. Janes shoud take *the child.Soon after the death of the mother, the child, with the father's consent, was placed in the care and custody of Mrs. Janes, the wife of the petitioner, with the distinct agreement and understanding that she was to have the child, and Janes and wife moved into Scott's house with the child, upon that express condition alone, and remained there until Captain Scott married again, about two years and ten months, Mrs. Janes in the meantime having the entire control of the child as if she was her own child.After Captain Scott's last marriage, Janes and his wife moved out of Scott's house into another house in the neighborhood, taking the child with them, and continued to remain with them until Captain Scott's death.Janes and wife had no children of their own.Things remained in this condition, so far as the custody of the child was concerned, until about three weeks prior to the suing out of the writ of habeas corpus, when it appears from the evidence in the record that the defendant, Cleghorn, who married thesister of Captain Scott, obtained the consent of Janes and his wife to take the child to Chattooga county, on a visit to his family, promising to return the child in ten days, which he failed to do.The defendant, in his answer, claims the lawful right to detain the child in his custody, on the grounds that his wife is the sister and a blood relative of Captain Scott; that they have no children of their own; that Captain Scott expressed a desire in his lifetime that his sister should have the custody and care of the child, and other excuses, as set forth in the record.The fact that the defendant, Cleghorn, obtained the possession of the child from Janes and wife for the purpose of making a visit to his family in Chattooga, under a promise to return the child to them in ten days, is not distinctly denied by the defendant.The court, in its judgment, as set forth in the record, found the facts to be, from the evidence before it, that it was the dying request of the mother of the child that Mrs. Janes should take it, raise and educate it as her own child; and that Captain Scott, under the most solemn circumstances, with a full knowledge of the facts, acquiesced in it; that Janes and wife took possession *of the child under the firm belief that they were to stand in loco parentis, and that this opinion of theirs was acquiesced in by Captain Scott, the father.In our judgment, there is sufficient evidence in the record to authorize the court to find as it did as to the facts of the case.But the court also held that this consent and agreement of Captain Scott, the father, was revocable, and that as it appeared from the declarations of Captain Scott, made during the last year of his life, that he had changed his mind, and that his last request was that his sister, Mrs. Cleghorn, should have the custody and control of the child to raise and educate, and therefore that the court would not interfere with Cleghorn\'s possession of the child....