Mccann v. Proskauer

• Decision Date: 05 March 1927
• Citation: 112 So. 621,93 Fla. 383
• Parties: McCANN v. PROSKAUER.
• Court: Florida Supreme Court

112 So. 621

93 Fla. 383

McCANN v. PROSKAUER.

Florida Supreme Court, Division A.

March 5, 1927

Rehearing Denied April 11, 1927.

Error to Circuit Court, Dade County; A. J. Rose, Judge.

Habeas corpus proceeding by Julien J. Proskauer against Mary G McCann for the custody of Joan Proskauer and Patricia Proskauer, his minor children. Judgment for petitioner, and defendant brings error.

Affirmed.

Syllabus by the Court

SYLLABUS

Transcripts of records in habeas corpus cases should be made up and certified according to circuit court rule 103, although special rules 1, 2, and 3 are by special rule 6 made applicable (Rev. Gen. St. 1920, § 3580). Transcripts of records upon writs of error in habeas corpus cases should be made up and certified in accordance with the requirements of circuit court rule 103; but special rules 1, 2, and 3 are by special rule 6 made applicable to habeas corpus proceedings.

Bill of exceptions made in accordance with rules of law is essential to preserve errors occurring at hearing of case on merits. A bill of exceptions made up in accordance with the rules of law is essential to preserve errors which occur at the hearing of a case on its merits.

Judgment is not bad because trial judge refuses to fix amount and conditions of supersedeas bond. A judgment in a cause is not rendered bad because the trial judge refuses to fix the amount and conditions of a supersedeas bond.

Father is entitled prima facie to custody of minor children; in habeas corpus proceedings, father held entitled to custody of children as against his former wife. A father is entitled prima facie to the custody of his minor children.

COUNSEL

R. B. Gautier, of Miami, for plaintiff in error.

James M. Carson and McIlvaine & Ray, all of Miami, for defendant in error.

OPINION

ELLIS C.J.

Julien J. Proskauer, in October, 1926, obtained a writ of habeas corpus directed to Mary G. McCann to produce the bodies of Joan Proskauer, aged 10 years, and Patricia Proskauer, aged 9 years, children of the petitioner, and to show why they should not be delivered into the custody of their father.

A motion to quash the writ was denied, and the respondent answered.

The court heard the case upon the questions presented by the petition and answer, and awarded the custody of the children to the petitioner. What appears to be a transcribed stenographic report of the evidence heard constitutes the greater part of the record. There is no bill of exceptions. There is a stipulation between counsel that the document attached, consisting 'of 87 pages of testimony and 6 exhibits,' contains all the evidence introduced at the hearing, and a certificate of the trial judge that the transcript, 'consisting of 87 pages of testimony and 6 exhibits, contains all the evidence introduced at the hearing.' There is no date, either to the stipulation or the certificate. The judgment was entered on the 19th of October, 1926. A writ of error was allowed on October 23d and the same was made returnable to November 29, 1926. The record was filed here on the 27th day of that month.

Transcripts of records upon writs of error in habeas corpus cases should be made up and certified in accordance with the requirements of circuit court rule 103. See Hart v. Cotten, 44 Fla. 172, 31 So. 817.

A bill of exceptions, which should be made up in accordance with the rules of law, is essential to preserve errors which occur at the hearing on the merits. See Maddox v. Barr, 49 Fla. 182, 38 So. 766.

In a habeas corpus proceeding, where the judgment of the trial court is sought to be reviewed, the record should be prepared in accordance with the rules prescribed by the appellate court for the preparation of transcripts of the record. See section 3580, Revised General Statutes.

Rule 103, Rules of Circuit Courts, is the proper one to observe in such cases, although by special rule 6 Rules of Circuit Courts, special rules 1, 2, and 3, which were adopted for use especially in civil cases, were made applicable to habeas corpus proceedings. The transcript of the record in this case was made up under the special rules, which were not observed in many particulars.

Three assignments of error are relied upon, One attacks the order overruling the motion to quash the writ and dismiss the petition, one attacks the order awarding the children to the custody of the father, and the other denying a motion that the court should fix the amount and conditions of a supersedeas bond.

There is no merit in either the first or third assignment of error. A judgment is not rendered bad because the court refuses to fix the amount and conditions of a supersedeas bond. The court could have denied a writ of error; it was within its power. See Roach v. Keep, 73 Fla. 1048, 75 So. 528; State ex rel. Porter v. Vinzant, 49 Fla. 130, 38 So. 366.

The petition was not defective. It alleged that the petitioner was the father of the two children and that he was deprived of their custody by the respondent, to whom the petitioner had committed the temporary custody of the children under a promise to return them to him in time to send them to school in September, and which the respondent had violated, and who had since held them in her custody and refused to return them to him.

The father is entitled prima facie to the custody of his minor children. See Porter v. Porter, 60 Fla. 407, 53 So. 546, Ann. Cas. 1912C. 867; Busbee v. Weeks, 80 Fla. 323, 85 So. 653.

In view of the nature of the case, which involves the welfare of two minor children, the court has read the...