McDonald v. Short

• Decision Date: 29 March 1921
• Docket Number: No. 23596.,23596.
• Parties: McDONALD v. SHORT et al.
• Court: Indiana Supreme Court

190 Ind. 338

130 N.E. 536

McDONALD

v.SHORT et al.

No. 23596.

Supreme Court of Indiana.

March 29, 1921.

Appeal from Circuit Court, Rush County.

Petition for habeas corpus by William A. McDonald against Luther Short, as superintendent, and Davis Strouse and others, as trustees of the Indiana Soldiers' and Sailors' Orphans' Home, Knightstown, Ind. From judgment that petitioner take nothing, he appeals. Judgment affirmed.

Superseding former opinion, 125 N. E. 451.

Geo. L. Gray, of Connersville, and Felt & Forney, of Indianapolis, for appellant.

Ele Stansbury, of Indianapolis, for appellees.

MYERS, J.

This was a habeas corpus proceeding brought by appellant to obtain from appellees the custody of his four children aged 12, 10, 8, and 6, respectively. A motion to quash was sustained, and, appellant refusing to plead further, judgment was rendered that he take nothing by his petition, and that appellees recover their costs. The sustaining of the motion to quash the writ is the only error assigned.

[1] The motion to quash was effective to test the sufficiency of the application to sustain the writ. Schleuter v. Canatsy, 148 Ind. 384, 47 N. E. 825;Willis v. Bayles, 105 Ind. 363, 5 N. E. 8;Edenharter, Supt., v. Connor, 185 Ind. 643, 114 N. E. 212.

[2] The rule is elementary that a cause on appeal must be tried upon the record before the court. Hence a few leading facts shown by the petition will serve to exhibit the questions presented, as well as the basis upon which they are decided. It appears from the petition that appellee Short is the superintendent,and the other appellees named are the trustees of the Indiana Soldiers' and Sailors' Orphans' Home, situate near Knightstown, in Rush county, Ind.; that appellant is the father of the children named who are now in the custody and control of appellees as officers of the home, and who, it is alleged, without right are unlawfully restraining and holding the possession, custody, and control of these children at such home against the right of this petitioner upon the pretense of authority granted by “an order and judgment and decree of the Rush circuit court of Rush county, Ind., made on the 1st day of November, 1916; that said court at said time made said judgment and order placing the custody of said children in possession of said superintendent and trustees of said home, and that such order and judgment of said court is the only authority and basis upon which said defendants are claiming the right to the possession and custody of your petitioner's minor children.” It further states that since the making of the order and rendition of the judgment mentioned the petitioner's circumstances and conditions relative to the care of his children have materially changed, in that he “has fitted up a proper home in which to care for them at No. 105 Eastern avenue in the city of Connersville, Ind., and with all necessary and proper furniture and all proper equipment for their reasonable comfort and convenience, and that he has employed a proper and suitable person to take charge of said home, and to watch over and care for his said children; that your petitioner is now, therefore, properly equipped and in position to provide and maintain a comfortable and proper home for the welfare of his said minor children,” and that he is now a fit and suitable person for the care, custody, and control of them.

[3] In this state the father, if a suitable person, and if not then the mother, if a suitable person, has the preference to the custody of the person, control, and education of their legitimate minor children, but either or both may be deprived of such custody in some appropriate proceeding wherein it appears that the welfare of such children is paramount to the claims of the parent. Section 3065, Burns 1914; Brooke v. Logan, 112 Ind. 183, 13 N. E. 669, 2 Am. St. Rep. 177;Bryan v. Lyon, 104 Ind. 227, 3 N. E. 880, 54 Am. Rep. 309; Schleuter v. Canatsy, supra; Berkshire v. Caley, 157 Ind. 1, 7, 60 N. E. 696;Gilmore v. Kitson, 165 Ind. 402, 74 N. E. 1083;Shoaf v. Livengood, 172 Ind. 707, 714, 88 N. E. 598;Keesling v. Keesling, 42 Ind. App. 361, 85 N. E. 837.

In this connection it will be noticed that our Civil Code (section 1164, Burns 1914) provides that-

“Writs of habeas corpus shall be granted in favor of parents *** to enforce the rights and for the protection of infants; *** and the proceedings shall, in all such cases, conform to the provisions of this statute.”

And section 1165 provides that-

“Application for the writ shall be made by complaint, signed and verified either by the plaintiff or by some person in his behalf, and shall specify-First. By whom the person in whose behalf the writ is applied for is restrained of his liberty; and the place where; naming all the parties if they are known, or describing them if they are not known. Second. The cause or pretense of the restraint, according to the best of the knowledge and belief of the applicant. Third. If the restraint be alleged, to be illegal, in what the illegality consists.”

[4] Thus it will be seen that in this state the procedure in a habeas corpus proceeding is governed by our Code; and, while parents may have the benefit of such writ, to obtain possession of their children, they must, by their application, exhibit facts showing that they are entitled to this extraordinary remedy, which is not regarded as a civil action. McGlennon v. Margowski, 90 Ind. 150;Milligan v. State ex rel., 97 Ind. 355; Willis v. Bayles, supra; Edenharter, Supt., v. Conner, supra.

[5] As generally understood, the writ of habeas corpus is a “writ of liberty,” and its original purpose was the release of persons illegally or forcibly imprisoned. However, in such cases when it was made to appear that such detention was by virtue of the process of a court, the writ was not granted unless the proceeding or judgment supporting the process was absolutely void. Willis v. Bayles, supra; Williams v. Hert, 157 Ind. 211, 60 N. E. 1067, 87 Am. St. Rep. 203;State v. Bechdel, 37 Minn. 360, 34 N. W. 334, 5 Am. St. Rep. 854. But in cases like the one before us, where the freedom of children is only technically involved, the writ is allowed, not merely to determine legal rights of custody as between applicants therefor, but to accomplish the best interests of the infants, and hence distinguishable from cases involving unlawful imprisonment under color or claim of warrant of law. New York Foundling Hospital v. Gatti, 203 U. S. 429, 27 Sup. Ct. 53, 51 L. Ed. 254;State ex rel. Evangelical, etc., Society v. White, 123 Minn. 508, 144 N. W. 157;Knapp v. Tolan, 26 N. D. 23, 142 N. W. 915, 49 L. R. A. (N. S.) 83; State v. Bechdel, supra.

[6] In this case the petitioner admits that the children for whose custody he instituted this proceeding were committed to the care and custody of appellees by the order and judgment of the Rush circuit court, which is in all respects valid and in full force. And for aught appearing in the application, we may assume that the judgment was the conclusion of an appropriate issue to which appellant was a party, directly involving the welfare of his children and his fitness to have their care and custody. But appellant insists that such judgment is only prima facie evidence of appellees' right to the custody of the children, and conclusive only as to the facts and conditions existing up to the time of rendering it. This contention is not entirely correct, for, if the proceedings were such as to give the Rush circuit court jurisdiction to make a valid order and judgment committing the children to appellees, such judgment must be regarded as final upon the facts as they then existed, appealable, but otherwise unassailable as other judgments. But the court is not thus precluded from afterwards considering facts and circumstances subsequently arising regarding the same subject-matter and between the same parties. Stone v. Stone, 158 Ind. 628, 631, 64 N. E. 86;Dubois v. Johnson, 96 Ind. 6;Brooke v. Logan, supra, 112 Ind. 186, 13 N. E. 669, 2 Am. St. Rep. 177;Willis v. Willis, 165 Ind. 332, 339, 75 N. E. 655, 2 L. R. A. (N. S.) 244, 6 Ann. Cas. 772; Church, Habeas Corpus (2d Ed.) § 387; Cormack v. Marshall, 211 Ill. 519, 71 N. E. 1077, 67 L. R. A. 787, 1 Ann. Cas. 256;State v. Flint, 61 Minn. 539, 63 N. W. 1113; Knapp v. Tolan, supra; State v. Bechdel, supra; Slack v. Perrine, 9 App. D. C. 128.

[7] Whether the judgment mentioned as to custody grew out of a divorce proceeding, or a proceeding in habeas corpus between appellant and his wife living apart, or between appellant...