Jones. v. Bowman

• Decision Date: 06 July 1904
• Citation: 77 P. 439,13 Wyo. 79
• Parties: JONES ET UX. v. BOWMAN
• Court: Wyoming Supreme Court

77 P. 439

13 Wyo. 79

JONES ET UX. v. BOWMAN

Supreme Court of Wyoming

July 6, 1904

ERROR to the District Court, Johnson County, HON. JOSEPH L. STOTTS Judge.

Habeas corpus for the custody of Ida May Bowman, a minor orphan child. From a judgment in favor of the petitioner, Margaret H. Bowman, the respondents, John A. Jones and Ella Jones prosecuted error. The material facts are stated in the opinion.

Parmelee & Hill and J. W. Lacey, for plaintiffs in error.

(Original brief.) In the admission of most of the testimony objected to by the plaintiffs in error there was a disregard of all rule which was not authorized even under the most liberal statement of the rule in habeas corpus cases, much of it being hearsay and entirely foreign to any issue in the case.

The petitioner, Miss Bowman, had not been appointed guardian in Minnesota, neither had she applied for letters at the time of the removal of the child from that state. If the removal was lawful, as we contend it was, and was permanent in character as the testimony discloses, then the Probate Court of Minnesota was without jurisdiction. (State v Giroux, 47 P. 800.) If Miss Bowman was not the legal guardian of the child, then the custody of plaintiffs in error was in no respect unlawful. The petitioner's authority was at all events local, and her power over the ward confined to the state of her appointment. (Story Conf Laws, Sec. 499.) The courts of this state had jurisdiction, notwithstanding the appointment of a guardian elsewhere, to appoint a guardian here; and the custody of such guardian could not in any sense be said to be unlawful. (Woerner on Guardianship, 159.) A demand was necessary before bringing proceedings to obtain the custody of the child; and none being made, judgment against the respondents was for that reason erroneous. (9 Ency. Law, 242.) At least the judgment would be erroneous so far as it required the payment of costs by the respondent. The welfare of the child is the paramount consideration and must control the custody even as against the legal guardian. (Woerner on Guardianship, 159; In re Welch, 74 N.Y. 299; Wilcox v. Wilcox, 14 id., 576; People v. Watts, 122 id.; In re Bullen, 28 Kan. 781; Church on Hab. Corp., Sec. 446; Hochheimer Custody of Infants, Secs. 44, 46.) Even if Miss Bowman had been at the time of the child's removal its legal guardian, and the plaintiffs in error had forcibly removed the child (which they did not), it does not follow that she should be restored to Miss Bowman. (Foster v. Alston, 6 How. (Miss.), 406.) There can be no question from the evidence in the case that the child would have by far the best advantages in the home of plaintiffs in error, where she was surrounded by all the comfort and refinement which a moderate competence could secure. Moreover, she was there subject to the influences which pervade a peaceful and happy home, and associated with her brothers. All that would be lost to her if she was placed in the custody of the petitioner, who has no resources and no home; though she claims to be able to support herself and her child by her skill with the needle. So far as appears, however, she has never supported even herself, and during the periods when she was working her income appears to have been precarious. It is not to be forgotten that both parents of the child expressed an unwillingness that she should be placed in charge of the training and religious instruction of the petitioner. Preference will be given to one of the same religion with the parents in selecting the custodian of a child (In re Doyle, 16 Mo. App., 159), though such consideration would not necessarily control when the physical and general welfare of the child demanded a different disposition.

The right of the brother, Oscar, who was impelled by his aunt's threat to take the child away from him, to act promptly and decisively in removing the child from his aunt's custody, were at least equal to the rights of the latter; and he was doing that only which his father had enjoined upon him.

(Supplementary brief.) The child, if given into the custody of Miss Bowman, will be cut off from all other relatives, consisting of two brothers, three uncles and three aunts. The appointment of Mr. Jones as guardian in this state was authorized under the statute. (R. S., Sec. 4866; In re Raynor, 74 Cal. 421.) The interests of the child are paramount, and neither guardian nor relative has any rights which can be permitted to stand in the way of the child's interest. (Matter of Heather Children, 50 Mich. 261; Garner v. Gordon, 41 Ind. 92; In re Bullen, 28 Kan. 557.) The three children should be kept together. (English v. English, 32 N.J. Eq. 758; Lusk v. Lusk, 28 Mo. 91; 2 S. & R., 174.)

Because a judge in chambers is authorized to hear a habeas corpus proceeding is not a sufficient reason for denying proceedings in error when the court has in fact heard the cause. (Bank v. Moorcroft Ranch Co., 5 Wyo. 50.) This court has power to review the judgment of the court below in the habeas corpus proceeding. (R. S. 1899, Secs. 4247, 4248, 4249; Const., Art. 5, Secs. 2 and 3; 6 Ohio St. 55; Wilcox v. Nolze, 34 id., 520; Yates v. People, 6 Johns., 337; In re White (Neb.), 51 N.W. 287; State v. Atwater, id., 1073; In re Van Sceiver (Neb.), 60 N.W. 1037; State ex rel. McCaslin, 65 Miss. 93; Steele v. Shirley, 13 S. & M. (Miss.), 382; Covington v. Arrington, 32 Miss. 144; State v. Hill, 10 Minn. 63; In re Hicks, 20 Mich. 129; State v. Crocker, 5 Wyo. 385; Miskimmins v. Shaver, 8 Wyo. 392.) Notwithstanding that the hearing was by a court and not by a jury, the admission of incompetent evidence can be taken advantage of on error. (Est. of James, 124 Cal. 653; Bough v. Geiselman (Tex.), 55 S.W. 615; Carroll v. Diemel, 95 N.Y. 252; Gordon v. McCall (Tex.), 48 S.W. 1111; Brigham v. Golt, 3 N.Y.S. 518; Bank-Note Co. v. Ry. Co., 18 id., 532; Spanagel v. Dellinger, 38 Cal. 278; Torrance v. Bank (Kan.), 71 P. 235.) The rule adopted by some courts in equity cases, where the court itself weighs the evidence, is not applicable here, since causes in equity are treated the same as causes at law for appellate purposes, and bills of exception must be filed in equity cases the same as in others. (Conway v. Smith Merc. Co., 6 Wyo. 327.)

Gibson Clark, for defendant in error.

A determination by a court or judge of habeas corpus proceedings is not a final order upon which proceedings in error may be predicated, because it does not affect a substantial right nor determine the action. (21 Ency. Law (1st Ed.), 129; Miskimmins v. Shaver, 8 Wyo. 329; 11 Ency. Pl. & Pr., 820; 9 id., 1072; Ex parte Thompson, 93 Ill. 89.) The right of review in such a case does not exist in the absence of statute to that effect. The constitutional writ, to accomplish the end intended, viz: to secure immediate relief from illegal confinement, must necessarily be vigorous and summary. Again, the writ may be issued and the matter determined by a judge in vacation, from whose decision there could clearly be no appeal. (Hammond v. People, 32 Ill. 446.) The awarding of the custody of the child by the District Court was the exercise of judicial discretion and, therefore, not subject to review on error. (Elliott on App. Proc., Sec. 598; Powell on App. Proc., 322; Church on Hab. Corp., Sec. 389; Jenkins v. Clark, 71 Iowa 552; People v. Brown, 103 N.Y. 684; In re Welch, 74 id., 299; State v. Bechdel, 38 Minn. 278; People v. Watts, 122 N.Y. 238; State v. Noble, 70 Iowa 174.) The fact that incompetent testimony has been received is not sufficient ground for reversing the judgment when the case is tried without a jury; in such case the appellate court will give no weight to such testimony. (Ritter v. Schenck, 101 Ill. 387; Dewey v. Allegre, 37 Neb. 6; Frisk v. Reiglman, 75 Wis. 499; Kleimann v. Geiselmann, 114 Mo. 437; 2 Ency. Pl. & Pr., 567.)

The domicile of the children is that of the father. (10 Ency. Law (2d Ed.), 112.) Upon the death of the father and mother, the children became wards of the Probate Court having jurisdiction over said domicile, and that court was the one to appoint a guardian for such children. (Jenkins v Clark, 71 Iowa 552; Wells v. Anderson, 60 Miss. 379; In re Hubbard, 82 N.Y. 90; Lewis v. Costello, 17 Mo. App., 593; Montgomery v. Smith, 3 Dana, 395; Allgood v. Williams, 92 Ala. 551; De Jarnett v. Harper, 45 Mo. App., 415; Woerner on Guardianship, Sec. 26; 9 Ency. Law (1st Ed.), 94; 15 id. (2d Ed. ), 33, 34.) That court having appointed the petitioner as guardian of the child in controversy, the courts in this state have no power to act in the matter of guardianship, since neither residence, property or domicile of the minor lie within the jurisdiction of any court in this state. Moreover, the person of the ward was unlawfully in this state. A minor cannot, of his own volition, alter his domicile of origin, which continues until changed by lawful authority. The plaintiffs in error are in the position of one who has kidnaped a child and, therefore, have no rights in the premises. Notwithstanding that the authority of the petitioner as guardian was local, it does not follow that she has no rights in a foreign state over her ward wrongfully removed from her domicile. The doctrine of comity between states allows a foreign guardian to recover her ward in such cases. (Woodworth v. Spring, 4 Allen, 384; Church on Hab. Corp., Sec. 457; Taylor v. Jeter, 33 Ga. 195; Warren v. Hoefer, 13 Ind. 167; Townsend v. Kendall, 4 Minn. 412; People v. Allen, 105 N.Y. 628.) Demand was unnecessary, and would have been absurd where the child was wrongfully as well as forcibly taken from the custody of the petitioner. Even if the judgment of the District Court is reviewable in this proceeding, the question is not what this...