Johnston v. Johnston

• Decision Date: 05 February 1895
• Citation: 62 N.W. 181,89 Wis. 416
• Parties: JOHNSTON v. JOHNSTON.
• Court: Wisconsin Supreme Court

89 Wis. 416

62 N.W. 181

JOHNSTON

v.JOHNSTON.

Supreme Court of Wisconsin.

Feb. 5, 1895.

Error to circuit court, Winnebago county; George W. Burnell, Judge.

Proceedings of habeas corpus by Charles E. Johnston against Nora A. Johnston, his wife, to obtain the custody of their minor children. From an order of the circuit court remanding the children to the care of defendant, plaintiff brings error. Affirmed.

This is a writ of error to the circuit court for Winnebago county, to review the judgment of that court in a proceeding by the plaintiff in error on his petition for a writ of habeas corpus, directed to the defendant in error, his wife, to obtain the custody and control of the minor children of their marriage, namely, Lulu May Johnston, aged eight years, and Nathan F. Johnston, aged seven years; the petitioner claiming that he is a suitable and proper person for the care and custody of his said children, and willing and able to properly provide for them, and that his wife is an unfit person to have the care and custody of them, and has not the means and ability to support and properly provide for them and furnish them a suitable home; that she had clandestinely taken the children from school where he was sending them, and had kept them secreted and deprived them of their liberty. Return was made to the writ, and there was an issue thereon and trial. After hearing the evidence, and the trial judge having had a private conference with the children, the court made an order remanding them to the care and custody of their mother until they should arrive at an age when they might properly select their own custodian.F. W. Houghton, for plaintiff in error.

Thompsons, Harshaw & Davidson, for defendant in error.

PINNEY, J. (after stating the facts).

It appears from the evidence that the parties were married in 1885, and in April of that year went to the house of the petitioner's father, Nathan Johnston, to live; that the respondent left that place, and took the children with her to her father's, in Oshkosh, in February, 1887, where she kept them a few weeks, and then took them to Milwaukee, and kept them there until December of the same year, and then she and her husband took them back to his father's, where they remained most of the time until October 13, 1893, when the respondent took them from the school they were attending to her father's in Oshkosh, and had kept them there ever since; that her father was able and willing to provide her and the children a home. The parties had separated, and were not living together. Evidence was given tending to show that the respondent finally left the home of her husband's father for the reason that he told her he had rented his farm, and would not keep her any longer with her children; that her husband had never provided her with any home or support, nor bought her or the children any clothing. After the children had been taken from Milwaukee to the home of the husband's father, the respondent remained in Milwaukee, the children visiting her frequently, and finally, in November, 1891, she went back to live with them at her husband's father's, doing the housework, and he boarded and clothed her and her children for a considerable time. That he was willing to provide for them, and was a man of means, a widower about 60 years of age. That a short time before the respondent took the children from the school articles were executed between the petitioner and his father, by which the children were apprenticed to him to learn stenography, and were to be provided for by him until the expiration of the respective terms of each of them, when they were to receive $500 each. That he agreed to leave them $1,500 each by his will. That he then lived with his sister, Mrs. Pugh, a competent person to care for the children. The petitioner testified, among other things that he had no idea how much he earned; that he had been...