Jones v. Darnall
| Decision Date | 18 September 1885 |
| Docket Number | 12,253 |
| Citation | 2 N.E. 229,103 Ind. 569 |
| Parties | Jones et ux. v. Darnall |
| Court | Indiana Supreme Court |
Petition for a Rehearing Overruled Nov. 21, 1885.
From the Montgomery Circuit Court.
The judgment is reversed, with costs, and the cause is remanded with instructions to enter an order that the child, Arthur J Darnall, in accordance with this opinion, shall remain with the appellants, and that appellee's petition be dismissed, at his costs.
G. W Paul, J. E. Humphries, P. S. Kennedy, S. C. Kennedy and W. Reeves, for appellants.
A. D. Thomas and W. J. Darnall, for appellee.
This was a habeas corpus proceeding instituted by the appellee, Darnall, to obtain the custody of his infant son, Arthur J. Darnall, from the appellants, Jones and wife, who were the maternal grandparents of such infant. A writ of habeas corpus was duly issued, to which the appellants made return in writing, wherein they admitted that they were then in possession of Arthur J. Darnall, the infant son of the appellee and Susanna Belle Darnall, then deceased; but they said that Susanna Belle Darnall died about the 22d day of October, 1884; that appellee's infant son was born on the 28th day of September, 1884; that when Susanna Belle Darnall died, the appellee had no home for his infant son; that before appellee's wife died she requested her mother, one of the appellants, to take and raise such infant child; that appellants were in good circumstances, and were capable of raising such child; that soon after the death of his wife the appellee asked the appellants to take such child and raise it the same as their own child; that they said to him, they were afraid that after they had taken the child and become attached to it, he would want to take it away from them and give them trouble about the child; that the appellee then gave his word to appellants that he would never take the child from them, and upon his promise and agreement with them, they agreed to take and care for such child; that, with the full consent of appellee and at the dying request of their daughter, Susanna Darnall, and under the facts stated, the appellants took such child and had taken care of him, and his grandmother had given him the same care and attention she would have given her own child; that such child had to be fed with a spoon, and appellants got up in the night and fed and cared for him; that they had become attached to the child, and felt almost as near to it as they would if it were their own child; that they were willing the appellee might visit his child, and would treat him friendly and would teach the child to love and respect its parents; that appellee gave such child to appellants, and promised he would never take it away from them, and surrendered to them the care and possession of the child; that they had a good home for the child, and were willing and able to care for, support and maintain such child, and would treat him the same as their own child.
Appellants further said, that the appellee had no wife and no family, and worked by the month and went from place to place, and had no way to take care of such child; that appellee had no property, and since the death of his wife he had been drunk and at times used intoxicating liquor, and had a very violent temper; that the child then had a good and comfortable home with kind and affectionate grandparents, who were of good habits and were fit and proper persons to have control, care and custody of such child; that it was for the best interests of such child to be left with the appellants; and that the appellee, in his then condition in life, was not a fit and proper person to take charge of such child.
Appellee replied by a general denial to appellants' return, and, upon a hearing then had, the court found for the appellee. Over appellants' motion for a new trial, the court rendered judgment awarding the custody of the child to its father, the appellee.
In this court, the only error relied upon, in argument, for the reversal of the judgment below, is the overruling of the motion for a new trial. In this motion, the only causes assigned for such new trial or hearing were such as question the sufficiency of the evidence to sustain the finding and judgment below.
Appellants' counsel first insist very earnestly that the evidence showed an absolute gift by the appellee of his child to the appellants, which he could not afterwards revoke, rescind or annual, so as to entitle him to reclaim the custody and possession of the child from them. It may be fairly said, we think, that there is evidence in the record which tends, at least, to sustain the material facts stated by the appellants in their return to the writ, the substance of which return we have heretofore given. But as to some of these facts the evidence was conflicting; and it was the province of the circuit court to settle this conflict, and to determine which of the witnesses were the more worthy of belief. This court will not weigh evidence as a general rule, nor attempt to determine its preponderance. Considering all the evidence in the record, we may say, however, that it fails to show an absolute and unconditional gift by the appellee of his infant child to the appellants, or any intention on his part to yield or surrender to them his rights as a father to the custody and possession of the person of his child for any definite period of time.
In section 2518, R. S. 1881, in force since May 6th, 1853, after declaring that the guardian of an infant shall have the custody and tuition of such minor, and the management of such minor's estate, there follows this proviso "Provided, That...
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