Lewis v. Klingberg

Decision Date13 December 1923
Citation123 A. 4,100 Conn. 201
CourtConnecticut Supreme Court
PartiesLEWIS v. KLINGBERG.

Appeal from Superior Court, Hartford County; L. P. Waldo Marvin Judge.

Application by Ann M. Lewis for writ of habeas corpus, directed to John E. Klingberg, for custody of Dorothy Everment, a minor. From a judgment dismissing the writ, petitioner appeals. Case transferred from the First District. Judgment set aside, and new trial ordered.

Proceeding in the superior court by writ of habeas corpus is a well-recognized summary method of settling a controversy as to custody of a minor.

The respondent made return to the writ, alleging his appointment and qualification as guardian of the minor under a decree of the probate court for the district of Berlin, and further alleged that the petitioner had and still has a right of appeal therefrom. A certified copy of the decree is annexed to the return. The petitioner answered that the decree was wholly illegal and void and contrary to the statute.

The decree was in the following form:

" At a court of probate holden at New Britain, within and for the district of Berlin, on the 16th day of January A. D. 1923.

Present Bernard F. Gaffney, Judge.

In re Dorothy Evermon, of New Britain, in said District a Minor. Whereas it has come to the attention of this court that Dorothy Evermon is a minor residing in New Britain, in said probate district of Berlin, and is without legal guardian of her person, it is ordered and decreed that Rev. John E Klingberg, of New Britain, Connecticut, be and he is hereby appointed guardian of said Dorothy Evermon, a minor.

Bernard F. Gaffney, Judge."

The cause came on for hearing upon the issues raised by the pleading and upon a motion by respondent to dismiss. In support of the allegation of the answer to the return that the decree of the court of probate appointing the respondent guardian of the person of Dorothy Everment, a minor, was illegal and void, the petitioner offered to prove by witnesses in court that Dorothy Everment was a minor nearly 10 years of age, and an illegitimate child born in New Britian, whose mother was still alive and is now a resident of the state of New Jersey; that the petitioner Mary Ann Lewis, was a person duly licensed to take children to board that Dorothy Everment was committed to the care and custody of the petitioner by her mother and when about 6 weeks old, and had remained under her care and custody until taken by the respondent under authority of the decree of the court of probate; that on January 16, 1923, the court of probate, without notice either to the petitioner or to the child's mother, and without any proceedings to remove the mother as guardian of the person of her minor child, appointed the respondent to be guardian of the person of the minor; and that the respondent thereupon took the minor from the petitioner's custody to a private home for neglected children conducted by the respondent, where it has ever since been kept. The court declined to admit the evidence and ruled: (a) That the writ of habeas corpus was not applicable to meet a situation of this kind; (b) that the petitioner's remedy was by proceedings to have respondent removed as guardian, or by appeal from the decree of the probate court appointing the respondent as guardian, and that the decree could not be collaterally attacked in this action. Judgment was entered dismissing the writ. Petitioner appeals from the refusal of the trial court to include in the finding some other claims and offers of evidence excluded at the hearing; from the ruling of the court that the decree of probate appointing the respondent guardian of the minor's person could not be collaterally attacked in this proceeding for want of jurisdiction; from the ruling of the court excluding evidence in support of the petitioner's claim that the probate court was without jurisdiction to appoint the respondent guardian, and from the ruling of the court excluding evidence as to the welfare of the minor in determining her custody. Other assignments of error were not pursued on the brief or in argument.

George W. Crawford, of New Haven, for appellant.

John H. Kirkham and Bernard D. Gaffney, both of New Britian, for appellee.

BEACH, J. (after stating the facts as above).

Our probate courts are courts of limited jurisdiction, and therefore their decrees are not conclusive as to the fact of jurisdiction, but may be collaterally attacked for want of jurisdction. Sears v. Terry, 26 Conn. 273; Bank v. Balcom, 35 Conn. 351; Olmstead's Appeal, 43 Conn. 110; Culver's Appeal, 48 Conn. 165; Hartford v. Poindexter, 84 Conn. 121, 131, 132, 79 A. 79; Woodmont Ass'n v. Milford, 85 Conn. 517, 523, 84 A. 307.

In respect of the appointment of guardians of the persons of minors under 14 years of age, the jurisdiction is conferred by sections 4861 and 4863, G. S., the material portions of which are printed in the margin for convenience of reference.[1]

In acting under statutes conferring jurisdiction, the probate courts have no powers except those which are expressly granted and such other powers as are necessary to the exercise of the jurisdiction expressly conferred. Chamberlin's Appeal, 70 Conn. 363, 378, 39 A. 734, 41 L.R.A. 204; De Ladson v. Crawford, Trustee, 93 Conn. 402, 405, 106 A. 326.

Section 4861 deals with the case of legitimate children having a parent or parents. Such parent or parents are declared by the statute to be the sole guardians, or joint guardians, as the case may be, of any legitimate minor child. Section 4863 covers the same ground as to illegitimate minors, saying:

" The
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8 cases
  • Bd.man v. Bd.man.
    • United States
    • Connecticut Supreme Court
    • November 5, 1948
    ...at least if he is domiciled in this state. Dunham v. Dunham, supra; Pfeiffer v. Pfeiffer, 99 Conn. 154, 157, 121 A. 174; Lewis v. Klingberg, 100 Conn. 201, 207, 123 A. 4. Our conclusion is that the Superior Court in this case had the right to determine the custody of the child as between th......
  • Palmer v. Reeves
    • United States
    • Connecticut Supreme Court
    • November 5, 1935
    ... ... guardian of a child has first been removed, the court of ... probate is without jurisdiction to appoint another as ... guardian. Lewis v. Klingberg, 100 Conn. 201, 123 A ... 4. The superior court in acting upon an appeal from probate ... is itself acting as a court of probate; it ... ...
  • Appeal of Goshkarian
    • United States
    • Connecticut Supreme Court
    • January 6, 1930
    ...157 N.Y.S. 587; Egoff v. Board of Children's Guardians of Madison County, 170 Ind. 238, 84 N.E. 151, 24 A.L.R. 427. In Lewis v. Klingberg, 100 Conn. 201, 123 A. 4, we held that a probate court had no jurisdiction to appoint guardian for a child until its mother, who was its sole guardian, h......
  • Potter v. Alcorn
    • United States
    • Connecticut Supreme Court
    • June 30, 1953
    ...or impliedly conferred upon them by statute. Union & New Haven Trust Co. v. Sherwood, 110 Conn. 150, 161, 147 A. 562; Lewis v. Klingberg, 100 Conn. 201, 204, 123 A. 4. Ordinarily, therefore, whether a Probate Court has jurisdiction to enter a given order depends upon the interpretation of a......
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