Kuhn v. Breen

• Decision Date: 10 April 1897
• Citation: 70 N.W. 722,101 Iowa 665
• Parties: KUHN v. BREEN.
• Court: Iowa Supreme Court

101 Iowa 665

70 N.W. 722

KUHN

v.BREEN.

Supreme Court of Iowa.

April 10, 1897.

Appeal from district court, Kossuth county; George H. Carr, Judge.

The plaintiff is the father, and the defendant the grandfather, of a child about 23 months old. This action is a habeas corpus proceeding to settle the legal custody of the child. The court below found the facts as follows: “(1) That Cornelius Leo Kuhn is a child twenty-three months old. (2) That the plaintiff is the father of the child, and is twenty-seven years of age, industrious, hardworking, and is possessed of but a small amount of property, consisting of household furniture, stock, and farming implements, all of the value of about nine hundred dollars; that he owes an indebtedness equal to at least half the value of the property, the larger portion of said indebtedness being secured by mortgages upon said property. (3) That the wife of the petitioner and the mother of the child died shortly after its birth, and that in April, 1896, the petitioner was married to Julia Dwyer, with whom he is now living upon a rented farm in this county, and that he has a comfortable home. (4) I further find that the petitioner is a proper person to have the care and custody of said minor child; that his wife is twenty-four years of age, of a kind and motherly disposition, and good moral character, and has been accustomed to the care of small children. (5) That petitioner has no other children; that he has an affectionate regard for the said child; and that both he and his wife are desirous of having the custody and maintenance of the said minor. (6) That the plaintiff's first wife, and the mother of the child, was the daughter of the defendant, and that at the time of her death she requested that her father be given the said child, and at the time her said husband concurred in and acceded to her request; that the defendant accepted the said child, and has since that time, with members of his family, been intrusted with its care and maintenance. (7) That the defendant is a man of good moral character, about fifty years of age, the owner of a 160-acre farm, well stocked; the said farm and a portion of the stock being slightly incumbered. (8) That subsequent to the death of the child's mother the wife of the defendant, and grandmother of the said child, died, and that defendant's family consists of nine grown-up children, two of whom are married, and one of whom is living away from home, and one grandchild besides the infant in question; the other grandchild being the offspring of a daughter of the defendant now dead. (9) That of defendant's family who are now living at home are three grown-up daughters, who have had the principal care of said minor child, and whose ages are twenty, twenty-two, and twenty-four, respectively. (10) That defendant and his said daughters are persons of good moral character, members of the Catholic Church, as are also the plaintiff and his wife, and that the said minor child has been well cared for in the defendant's family. (11) That the defendant and his family are greatly attached to said child, and are desirous of retaining the care and custody of the child. (12) That the said child is of a somewhat delicate constitution, and has required a considerable amount of care and nursing during occasional illnesses, which care and nursing have been furnished by the defendant's family, but that plaintiff has paid a doctor's bill for attendance upon said child. (13) That, shortly after the plaintiff's second marriage, he went with his wife to the residence of defendant, and demanded...