Jones v. Moore

• Decision Date: 06 January 1923
• Docket Number: 3869
• Citation: 61 Utah 383,213 P. 191
• Court: Utah Supreme Court
• Parties: JONES v. MOORE et al

213 P. 191

61 Utah 383

JONES v. MOORE et al

No. 3869

Supreme Court of Utah

January 6, 1923

Rehearing denied March 9, 1923.

Appeal from District Court, Third District, Summit County; Wm. M McCrea, Judge.

Petition by Alfred Marlowe Jones for writ of habeas corpus to obtain the custody of his infant child against Wm. Moore and another. From a judgment awarding custody to petitioner defendants appeal.

AFFIRMED.

P. W. Spaulding, of Evanston, Wyo., and D. N. Straup and H. Van Dam, Jr., both of Salt Lake City, for appellants.

P. H. Neeley, of Coalville, and Dey, Hoppaugh & Mark, of Salt Lake City, for respondent.

FRICK, J. WEBER, C. J., and GIDEON and THURMAN, JJ., concur.

OPINION

FRICK, J.

On May 7, 1920, the plaintiff filed his petition in the district court of Summit county for a writ of habeas corpus to obtain the custody of his infant child. He alleged in his petition that said child was restrained of its liberty by the defendants, setting forth in detail the facts in that regard. A writ of habeas corpus was duly issued, to which the defendants made return in the form of an answer, in which they also set forth the facts respecting their custody of the child.

A trial to the court resulted in findings of fact and conclusions of law in favor of the defendants. Pursuant to the aforesaid findings of fact and conclusions of law the court entered judgment awarding the custody and control of said child to them. A motion for a new trial was filed in due time by the plaintiff, in which one of the grounds for granting a new trial was insufficiency of the evidence to sustain the court's findings of fact. While the motion for a new trial was pending, the term of office of the Hon. P. C. Evans, the district judge who tried the case, expired, and he retired from office. Counsel for the respective parties then entered into a stipulation, whereby it was agreed that Hon. Wm. M. McCrea, who was elected as district judge to succeed Hon. P. C. Evans, should pass upon and determine the motion for a new trial. Hon. Wm. M. McCrea, after due consideration, granted the motion, and ordered the cause to be retried. Counsel for both parties then entered into another stipulation, whereby it was agreed that Hon. Wm. M. McCrea, as judge of the district court, without hearing the evidence, should consider and pass upon the same as it had been produced at the trial before Hon. P. C. Evans, and that upon the evidence he should make findings of fact and conclusions of law and enter judgment in accordance therewith. Judge McCrea, as judge of the district court, then made findings of fact and conclusions of law in favor of the plaintiff, and entered judgment awarding the custody and care of said child to him. The defendants appeal from that judgment, and present the record, including all of the evidence, to this court for review.

A number of errors are assigned in which the findings of fact, conclusions of law, and judgment are assailed. It is also insisted that the district court erred in granting the plaintiff's motion and in denying defendant's motion for a new trial.

We shall first consider the assignment that Judge McCrea, who passed upon plaintiff's motion for a new trial, erred in granting that motion.

Counsel urge that in view that Judge McCrea did not hear the witnesses testify nor observe their demeanor or conduct while testifying, for that reason he could not determine the weight or effect to be given to their testimony. In this connection it is strenuously urged that the rule so often announced by this court should prevail, namely, that in law cases, where there is any substantial evidence in support of the findings of the trial court, the reviewing court will not interfere with the findings. It is further insisted that the district court, in passing upon the plaintiff's motion for a new trial, merely acted in the capacity of a court of review.

The rule contended for, in our judgment, should not be applied in a case like the one at bar. In granting or denying a motion for a new trial there of necessity must be some discretion vested in the judge to whom the motion is presented. While it may be that in cases where the motion for a new trial is submitted to the successor of the judge who tried the cause great care should be exercised by the judge in passing upon the motion, yet he is not, and in the nature of things cannot be, wholly deprived of exercising some discretion in granting or denying the motion. Under such circumstances the successor acts, not merely as a reviewing court, but the law clothes him with all the powers of a trial court in the premises, and, however cautious he should be in considering the motion, he nevertheless, must exercise some discretion in the matter. The question, however is: Can a case like the one at bar be treated as a law case merely?

While it is true that the proceeding, in form at least, is habeas corpus proceeding, it is, however, so merely as a matter of convenience to the parties and to expedite a hearing upon the issues. No case involving the custody of minor children has ever been tried or considered in this jurisdiction as merely a habeas corpus proceeding, although the case in form is such. In habeas corpus proceedings nothing is inquired into except the legality of the restraint, and if it be found that the petitioner is illegally deprived of his liberty, but one conclusion is permissible, and that is that the same must be restored to him. Where, as here, however, the sole issue involved is who shall have the custody, care, and education of a child, and especially one of tender years the inquiry extends far beyond the ordinary issues involved in a habeas corpus proceeding. Cases like the one at bar partake of all of the incidents of a proceeding in equity. Indeed, under our procedure, it has become a proceeding which is equitable in the highest degree, as clearly appears from the decisions in all of the cases decided by this court, where the right to the custody, nurture, care, and education of children was the controlling issue. See Stanford v. Gray, 42 Utah 229, 12 P. 423, Ann. Cas. 1916A, 989; Hummel v. Parrish, 43 Utah 373, 134 P. 898; Harrison v. Harker, 44 Utah 541, 142 P. 716; Farmer v. Christensen, 55 Utah 1, 183 P. 328; Kurtz v. Christensen, 61 Utah 1, 209 P. 340. In view of the equitable nature of the proceeding, this court, in Harrison v. Harker, supra, held that the rule applicable in equity cases prevails, namely, that this court must examine into the evidence, and, in case, the findings of the trial court are clearly against the evidence, they will not be upheld. In every case of this character that has come before this court during the past 17 years while the writer has been a member, the proceeding has always been considered and treated as equitable. The mere fact that such cases are commenced under the habeas corpus statute in order to expedite a speedy hearing and determination of the case cannot alter the issues involved nor the nature of the proceeding. Moreover, from time immemorial the chancellors and not the law courts have determined the controversies respecting the care, nurture, education, and custody of minor children. The technicalities of the law must therefore give way to the more important questions, all of which appeal most strongly to the conscience of the chancellor. To that effect are all of the decisions. There is therefore--there can be--no merit to the contention that these cases should be treated merely as law cases, and that Judge McCrea, as successor to Judge Evans, and while acting as judge of the district court, had no power to do more than merely determine whether there was any substantial evidence in support of the findings of Judge Evans. The assignment, therefore, that Judge McCrea erred in granting the plaintiff's motion for a new trial, for the reasons stated, cannot prevail.

Nor is the contention tenable that this court may do no more than determine whether there is any substantial evidence in support of the findings of Judge Evans. For the reasons hereinbefore stated this court, in cases like the one at bar, is required to examine into the evidence, and, if, after doing so, it determines that the findings are clearly against the evidence, the findings cannot prevail.

The next error assigned is that the district court erred in denying appellants' motion for a new trial. In view that that question is necessarily involved in passing upon the evidence and in determining the correctness of the district court's findings and conclusions, we shall not discuss the assignment separately, but shall consider it in connection with the question as to whether the findings made by Judge McCrea are supported by the evidence.

The real question for determination, therefore, is: Who is entitled to have the care, custody, and control of this child, the plaintiff, who is its father, or the defendants, who are its grandparents?

The law in this jurisdiction respecting the right of a parent to the custody, control, and education of his minor child, and how such right may be forfeited or lost, is well settled. In his concurring opinion in Harrison v. Harker, supra, Mr. Justice Straup, in considering this subject, made the following observations:

"Much is said concerning the law of the case, and that the welfare of the child is of primary consideration. The doctrine, when properly understood and applied, may be conceded. The presumption is that parents are fit and suitable to be intrusted with the care and custody of their child, and that its interests and welfare are best subserved under their care and control. Before their legal right to its custody will be denied or invaded by the court. I think it must be made to appear that they in some...