Joab v. Sheets

• Decision Date: 25 November 1884
• Docket Number: 11,306
• Citation: 99 Ind. 328
• Parties: Joab et al. v. Sheets
• Court: Indiana Supreme Court

99 Ind. 328

Joab et al. v. Sheets

No. 11,306

Supreme Court of Indiana

November 25, 1884

Petition for a Rehearing Overruled March 12, 1885.

From the Superior Court of Vigo County.

The judgment is affirmed, with costs.

I. N Pierce, C. F. McNutt, J. G. McNutt, S. C. Davis, S. B. Davis T. W. Harper, S. R. Hammell and M. M. Joab, for appellants.

S. C Stimson and R. B. Stimson, for appellee.

OPINION

Niblack, J.

This was a proceeding upon a petition for a writ of habeas corpus, which was filed in the court below on the 4th day of September, 1883.

The petition, which was supported by the oath of the petitioner, stated that at the March term, 1883, of the superior court of Vigo county, she, under the name of Alice H. Joab, applied for a divorce from her husband Michael M. Joab, and that, on the sixty-second judicial day of said term, that is to say, on the 15th day of May, 1883, a divorce was decreed to her, and the bonds of matrimony theretofore existing between her and the said Michael M. Joab were thereby dissolved; that the custody of Albert Joab, the infant son of the plaintiff, and defendant in that suit, was awarded to the petitioner by the court, and her name was changed from Alice H. Joab to Alice H. Sheets; that the said Michael M. Joab had, since the order and decree concerning the custody of said infant child had been entered, as above stated, unlawfully and with force and violence, taken said infant child, then about two years and eight months old, from the custody of the petitioner and placed him under the care of Columbus Joab and Meda Joab, made co-respondents with him, the said Michael, by all of whom said infant child was restrained of his liberty in the city of Terre Haute, in said county of Vigo.

A writ of habeas corpus, directed to the respondents, and appellants here, was issued, and, after bringing the child into court, the respondents moved to quash the writ for the alleged insufficiency of the petition, but their motion was overruled.

They then made return to the writ that the said Michael M. Joab, in whose right the child was detained, was the father of said child; that the decree of divorce, mentioned in the petition, awarded to the petitioner the custody of such child only until the 15th day of December, 1885, after which such custody was to be transferred to the said Michael, as the father of the child; that, in the mean time, the petitioner was prohibited from taking the child out of the jurisdiction of the court without the court's leave; that while the child remained in the custody of the petitioner, the privilege of visiting and taking him out riding or walking, at all reasonable hours, for not more than a half day at a time, was expressly reserved to the said Michael by one of the provisions of the decree of divorce; that afterwards, and while she was in possession of said child under said decree, and in utter disregard of the inhibition imposed by it, the petitioner carried the child out of the jurisdiction of the said superior court of Vigo county, and so detained the same for a period of ten days, without the leave of said court, whereby the said Michael was unlawfully deprived of the privilege of visiting and enjoying the society of his said child for that space of time; that afterwards, on the 16th day of August, 1883, the petitioner, having deliberately planned and arranged to remove the child out of Vigo county, and into the State of Illinois, without leave of court, with the intention of residing in that State with the child for an indefinite time, and with the intention of depriving the said Michael of the privilege of visiting said child without great trouble and inconvenience, proceeded with the child to the Union depot in the morning about 7 o'clock, and went on board of a train of cars which was then about to leave for the said State of Illinois; that the said Michael, having a short time previously heard of the petitioner's intention of leaving this State and taking the child with her, went also on board of said train when it was on the point of starting, and without force or violence took said child into his own custody, and has ever since retained the custody thereof in said county of Vigo, taking proper care of such child, and making suitable provision for his comfort and maintenance; that, at that time, the judges of the circuit and superior courts of Vigo county, respectively, were both absent from said county, and neither one of said courts was in session; that the taking and detention of said child by the said Michael, as above stated, was the taking and detention complained of by the petitioner; that, by reason of the premises, the petitioner had forfeited all right to the custody of the child, and that, in consequence, the said Michael, as the father thereof, had become entitled to the care, control and guardianship of the same.

The petitioner excepted to the return, for alleged insufficiency of the facts to constitute a cause for the further detention of the child by the respondents, and the court sustained her exception.

The respondents declining to make further return to the writ, the court, without requiring or hearing any evidence to sustain the allegations of the petition, ordered that the child Albert Joab be discharged from the custody of the respondents and restored to the petitioner. The respondents thereupon immediately prayed an appeal to this court, and, without surrendering the possession of the child, tendered an appeal bond for the approval of the court. The petitioner objected to the approval of the appeal bond, or to the respondents being otherwise permitted to consummate their appeal, until the child was surrendered to her in compliance with the order of the court, but the court overruled the petitioner's objection, and approved the appeal bond.

The respondents, appealing, have assigned errors upon the record which may be reduced to three specifications:

First. Error in overruling the motion to quash the writ of habeas corpus.

Second. Error in sustaining the exception to the return to the writ.

Third. Error in ordering the discharge of the child from the custody of the appellants, without requiring the production of evidence to sustain the...