Milligan v. State, ex rel. Children's Home of Cincinnati

• Decision Date: 06 May 1884
• Docket Number: 11,224
• Citation: Milligan v. State, ex rel. Children's Home of Cincinnati, 97 Ind. 355 (Ind. 1884)
• Parties: Milligan v. The State, ex rel. Children's Home of Cincinnati, Ohio
• Court: Indiana Supreme Court

97 Ind. 355

Milligan v. The State, ex rel. Children's Home of Cincinnati, Ohio

No. 11,224

Supreme Court of Indiana

May 6, 1884

Petition for a Rehearing Overruled Sept. 25, 1884.

From the Delaware Circuit Court.

The judgment is affirmed with costs.

C. E Shipley and R. S. Gregory, for appellant.

OPINION

Howk C. J.

This case is now before this court for the second time. See Milligan v. State, ex rel., 86 Ind. 553. It is a proceeding by the appellee's relator to obtain, by writ of habeas corpus, the possession and control of one Laura Belle Hutchins, a minor under the age of twenty-one years. When the cause was here before, the order and judgment of the court, awarding the custody of the child to the relator, were reversed upon the ground that in its complaint or petition for the writ, the relator had not "pleaded so much of its charter as was requisite to establish in its favor a prima facie right to the custody of the child." The court said: "The right which it" (the relator) "asserts is not a natural one, and can exist only by the force of positive statute; and the statute relied on, being a foreign one, must be pleaded according to its tenor, so as to put it in the power of the court to construe or interpret it." Tyler v. Kent, 52 Ind. 583.

After the cause was remanded, the relator amended its complaint or petition by setting out the statute of Ohio under which it is incorporated, in conformity with the opinion of this court on the former appeal. Upon the hearing thereafter had, the court found that the facts stated in the complaint or petition were true, and that the relator was entitled to the care, custody and control of the said Laura Belle Hutchins, and the court ordered, adjudged and decreed accordingly.

In this court the appellant has assigned errors as follows:

1. The circuit court erred in overruling his motion to quash the writ of habeas corpus;

2. Error of the court in overruling his demurrer to the relator's complaint or petition;

3. Error of the court in sustaining the relator's exceptions to appellant's return to the writ of habeas corpus; and,

4. The relator's complaint or petition does not state facts sufficient to constitute a cause of action.

Only the first and third of these alleged errors are properly assigned here, or present any question for our decision. The second and fourth errors proceed upon the erroneous assumption that this is a civil action, and that the sufficiency of a complaint or petition for a writ of habeas corpus can be tested below by a demurrer for the want of facts, or by an assignment of its want of sufficient facts in this court. In the recent case of McGlennan v. Margowski, 90 Ind. 150, it was held that an application for a writ of habeas corpus is not a civil action. The court there said: "The party to whom the writ is directed makes his return or answer, not to the petition or complaint, but to the writ itself. The sufficiency of the writ may be tested before making a return or answer thereto, not by a demurrer, but by a motion to quash the writ. The return or answer to the writ is not the subject of demurrer, but its sufficiency may be tested by exception. Section 1117, R. S. 1881; Cunningham v. Thomas, 25 Ind. 171."

In Baker v. Gordon, 23 Ind. 204, this court held that a habeas corpus proceeding is not a "civil case," within the meaning of section 20 of the bill of rights, in the State Constitution of 1851, which provides that "In all civil cases, the right of trial by jury shall remain inviolate." Again, in Garner v. Gordon, 41 Ind. 92, it was held that a proceeding by habeas corpus is not a civil action, within the meaning of the sections of the civil code, which authorize a change of venue or a change of judge, in civil causes. And again, in McGlennan v. Margowski, supra, it was also held that under section 1118, R. S. 1881, a proceeding by habeas corpus is to be heard and determined, in a summary way, and that neither the court nor judge can be required, as in a civil action, to make a special finding of the facts or state conclusions of law thereon.

In their brief of this cause, the appellant's learned counsel first direct our attention to the alleged error of the circuit court in overruling the motion to quash the writ of habeas corpus. Counsel are correct, we think, in stating that this supposed error presents for our decision the question, whether or not the facts stated in the relator's complaint or petition were sufficient prima facie, to justify or authorize the court or judge to issue a writ of habeas corpus, as therein prayed for. The objections pointed out by the appellant's counsel, to the complaint or petition of the relator, seem to us to be purely technical, and such as could not be reached even by a special demurrer or a motion to make more specific. Thus, counsel say: "For instance, by the first section of the law of Ohio as pleaded (section 2181), it is seen that the law applies only to the case of children's homes and industrial schools, established in cities of the first and second classes; and there is no other statute set out in the complaint showing whether Cincinnati is a city of the first, second, third or any other numbered class." We fail to see the force of this objection to the writ, or to the complaint or petition upon which it was...