McKercher v. Green

• Decision Date: 10 May 1899
• Citation: 58 P. 406,13 Colo.App. 270
• Parties: McKERCHER et al. v. GREEN. [1]
• Court: Colorado Court of Appeals

58 P. 406

13 Colo.App. 270

McKERCHER et al. v. GREEN. ^[1]

Court of Appeals of Colorado

May 10, 1899

Error to district court, Arapahoe county.

Proceedings in habeas corpus by Frederick I. Green against Eliza J McKercher, M.E. McKercher, J.D. McKercher, A.J. McKercher W.C. McKercher, A.L. McKercher, and E. Lillian McKercher for the custody of his infant child. There was a judgment for relator, and defendants bring error. Reversed.

Patterson, Richardson & Hawkins, for plaintiffs in error.

Henry T. Sale and Morgan Edgar, for defendant in error.

WILSON J.

This is a suit involving the right to the custody of an infant child as between the father and the immediate family of the deceased mother. It is one of that unfortunate class of cases which are painful and distressing to litigants and judges alike, and present to the courts the most perplexing and embarrassing questions with which they are called upon to deal. The grounds for their decision, whatever it may be, are neither clearly fixed nor defined by the law, nor based upon tangible and substantive facts, susceptible of positive proof. It is a matter which calls almost wholly for the exercise of a sound discretion, based to some extent, at least, upon what may be called sentimental considerations, and in accordance with their best judgment of the material interests and welfare of a human being too young to determine for itself. In so doing, the difficulties of the court are increased by the fact that there is no statute to control, nor precedent to guide, it. No two of these cases are ever precisely alike, and each must be governed by its own attending circumstances, and in no case is the issue such that it can be gauged and measured by a standard of dollars and cents. In addition to this, the judges who constitute the court fully realize that, whatever their decision may be, it will bring deep sorrow to some party, and that they themselves may possibly err in their judgment.

The proceeding was in habeas corpus, and grow out of the following facts: On September 22, 1891, Jennie McKercher, who was the daughter of the first-named plaintiff in error and the respondent, and the sister of the other respondents, was married at Denver to the relator. The couple went to Iowa and resided upon the farm of the relator. During the following year a son was born to them. In May, 1893, from causes which it is not necessary here to discuss or to recite, the relations between the married couple seem to have become unhappy and unpleasant; and the wife left, returning to the home of her mother, in Denver, where she ever afterwards resided, to the time of her death. After this separation, on September 10, 1893, at Denver, a daughter, Lillian Halcyone, the subject of this controversy, was born. About January, 1895, the relator moved from Iowa to Oklahoma, and there took up his residence, and continues to reside in that territory. Within six months after taking up his residence in Oklahoma, when the child in controversy was about two years of age, the relator commenced suit in an Oklahoma court praying for a divorce from his wife, and that he be decreed to have the custody of the elder child, the son. The defendant appeared in this suit,--at what time, however, we are not advised and is not material,--and resisted the plaintiff's application. At some time thereafter plaintiff obtained leave, it appears, to file an amended complaint, and in that he also asked that he be decreed to have the custody of the infant child in controversy here. On the 11th day of March, 1897, during the pendency of these divorce proceedings in Oklahoma, the wife, Jennie Green, died at Denver. Upon her deathbed she committed the custody of the child to these respondents, her mother, sister, and brothers, and requested them to retain it. About April 16, 1897, the relator appeared in Denver, at the residence of the respondents, and demanded the custody of the child, which, being refused, he instituted this proceeding in habeas corpus. Upon the hearing it was adjudged that the custody of the child be awarded to the relator, and the respondents bring the cause on writ of error to this court for review.

The first question to be determined, and one which has been discussed with marked ability on both sides, is with reference to the jurisdiction of this court; it being forcibly urged by counsel for the petitioner that a writ of error will not lie to review the proceedings in the district court on habeas corpus, in the absence of a statute specially providing therefor. It may possibly be true that there is English authority in support of this contention, although it is a disputed question; it being insisted by leading American authorities, to which we will hereafter refer, that this is not true. It is not necessary for us, for the purposes of this case, to enter into an exhaustive examination of this disputed contention. The original purpose and object of the writ of habeas corpus having been solely to prevent a person from being illegally deprived of his liberty by unlawful imprisonment, the English authorities to which we have been cited, tending to support the doctrine of the relator, seem to have been based upon the principle that a judgment in a habeas corpus proceeding was not final, and it was not res adjudicata, because the party seeking the aid of the writ had the right to apply as frequently, and to as many different judges, as he might see fit, during the time of his imprisonment. This doctrine has apparently been followed by a respectable number of American state authorities. The contrary, however, and we think with far better reason, has been held by an equally respectable, if not weightier, line of American decisions. In New York, at an early date,--1810,--in the court of errors, it was held that a writ of error did lie in such cases. Yates v. People, 6 Johns. 337. Afterwards, and not before, as intimated by counsel, the principle of this decision was embodied into the legislation of the state, and became the settled statute law. In the decision of this case one of the senator judges, in the course of his opinion, aptly said, "Our law considers it an essential right of a suitor to have his cause examined in tribunals superior to those in which he considers himself aggrieved." In the separate opinion of Senator Clinton in the same case the nature of the decision in habeas corpus was thus forcibly and aptly characterized: "A judgment is a decision of a court upon the case before it, and the last or final determination of a tribunal is the proper subject for a writ of error. When a court puts an end to an action, by declaring that the plaintiff has either entitled himself, or has not, to the remedy he sues for, then it gives a final judgment. *** The question brought up on a habeas corpus is, is the prisoner legally imprisoned? If the court decide in the affirmative, the deprivation of liberty continues. Is not, then, this a final decision on the case before the court, and does it not deprive the party of the remedy he solicits? The words 'ideo consideratum est' are indeed omitted, and 'it seemeth' supply the place of 'it is therefore considered'; and this is the great subject of difference. And is the Gothic jargon of Norman lawyers and the ridiculous pedantry of the schoolmen still to pervade our temples of justice, and to prostrate principle and right at the feet of sophisticated nonsense?" In 1840 the question came before the supreme court of the United States. Holmes v. Jennison, 14 Pet. 540. It was elaborately discussed in separate opinions by a majority of the judges constituting the court, and five of these-- Taney, Story, McLean, Wayne, and Catron (certainly a brilliant array of legal and judicial talent)--concurred in the opinion that a writ of error would lie in such case. Only one judge--Baldwin--dissented. The leading opinion was by Chief Justice Taney, and in the course of it he said, after denying that the doctrine as contended for by the relator in this case had been laid down by the English courts: "Certainly no such decision was given in the case of Reg. v. Paty, 2 Ld.Raym. 1105, just mentioned, and we think it would be difficult to assign any good reason for refusing the writ of error. If a party is unlawfully imprisoned, the writ of habeas corpus is his appropriate legal remedy. It is his suit in court to recover his liberty. In order to be effectual for the purposes for which it is intended, the proceedings must be summary, and the law has accordingly made them so. And if an officer of a state government, in the exercise of an authority forbidden by the constitution of the United States, has deprived an individual of his liberty, why should it be supposed that the summary character of the proceedings by which he must seek to recover it would be deemed by congress a sufficient reason for denying him the writ of error to this court?" In Re Hicks, 20 Mich. 129, the question was squarely passed upon. Upon a motion to dismiss the writ of error because the decision of the circuit court upon habeas corpus was not reviewable, the court said: "The constitution has vested this court with a general superintending control over all inferior courts, and has clothed it with power to issue writs of error, habeas corpus, and other original and remedial writs; and we cannot doubt our authority to review by some mode a decision on habeas corpus, when made by the circuit court. To conclude otherwise would detract from the natural meaning of the language of the constitution, and in a manner to exclude jurisdiction in the very cases in which it is to be presumed that jurisdiction would be most essential." Other authorities might be quoted, but we do not deem it necessary, as the two cases in support of this...