Montgomery v. Crum

• Decision Date: 22 February 1928
• Docket Number: No. 25569.,25569.
• Parties: MONTGOMERY et al. v. CRUM.
• Court: Indiana Supreme Court

199 Ind. 660

161 N.E. 251

MONTGOMERY et al.

v.CRUM.

No. 25569.

Supreme Court of Indiana.

Feb. 22, 1928.

Appeal from Probate Court, Vanderburgh County; James T. Cutler, Special Judge.

Action by Ethel T. (Montgomery) Crum against John E. Montgomery and others. From a judgment for plaintiff, all of defendants but one appeal. Transferred from Appellate Court under section 1357, cl. 2, Burns' 1926. Reversed with instructions.

Superseding opinion of Appellate Court in 150 N. E. 393.

Embree & Baltzell, of Princeton, for appellants.

Sanford Trippett, of Princeton, for appellee.

MYERS, J.

On August 29, 1921, appellee commenced this action in the Posey circuit court against her former husband, T. Wilbur Montgomery, his father and mother, John E. Montgomery and Faulina Montgomery, and his brother and sister, Chester Montgomery and Estella Montgomery.

On September 17, 1923, a supplemental complaint was filed and a motion to strike it out was overruled. It and the original complaint were treated as the complaint on which the trial was had in the court below upon a change of venue resulting in a verdict and judgment for $25,000 in favor of appellee against all of the defendants. From that judgment the defendants, except T. Wilbur Montgomery, appealed, each separately assigning and relying on the single alleged error of the court in overruling his separate motion comprising many alleged causes for a new trial.

While there is no attack on the complaint, yet a brief synopsis of it may serve to a better understanding of the question we are called upon to determine.

The complaint, consisting of ten typewritten pages of the record, in substance, states that T. Wilbur Montgomery, who made default in the court below, is the father, and appellee is the mother, of Mary Eloise Montgomery, who was born August 30, 1906; on May 3, 1912, by a decree of the Posey circuit court, appellee was granted a divorce from T. Wilbur Montgomery on the grounds of adultery, cruel and inhuman treatment, and had not lived with him since then; that by such decree appellee was given the custody of the daughter, Mary Eloise, with the proviso that, if the grandparents, father and mother of T. Wilbur, so desired, they were to have the care and custody of the child during July and August of 1912, and during June, July, and August of each succeeding year; that during the months of July and August, 1912, the grandparents, at their home in Posey county, upon their request, had the care and custody of Mary Eloise until the latter part of August, when T. Wilbur Montgomery, pursuant to a conspiracy theretofore by him and these appellants formed, and by then and there unlawfully and feloniously confederating together, and with the connivance and assistance of appellants, T. Wilbur, without the consent of appellee, against the will of the child, and in defiance of the court's decree, willfully, unlawfully, and forcibly took and carried the child from the home of his parents and secretly out of the jurisdiction of the Posey circuit court and out of the state of Indiana, and under a false and assumed name and without the consent of appellee kept and detained the child in hiding and concealment from appellee in various towns and cities in the state of Florida, also in Cuba, the Isle of Pines, and Mexico, continuously from August, 1912, until June, 1921, when she was returned to the home of appellants in Posey county; that continuously for six years following the abduction of the child in 1912 appellee made diligent and faithful effort at great cost and expense to locate the child, by offering $500 reward for her return, and by employing lawyers, police officers, and detectives; that in 1912 Wilbur was, by indictment returned in the Posey circuit court, charged with child stealing, arrested in the state of Florida, extradited, and on March 13, 1913, was tried, convicted by a jury, and sentenced to pay a fine and to be imprisoned in the Indiana Reformatory for a period of not less than two years nor more than fourteen years; that in 1915, while in prison as a prisoner, by the consent of the prison authorities and the governor of this state, he was permitted to return temporarily to the home of his parents for the purpose of attending the funeral of his grandfather, that, while he was so at home under the escort of a prison guard, he made his escape, and thereafter was a fugitive from justice until in December, 1917; that while Wilbur was so confined in prison these appellants maliciously, wrongfully, and unlawfully continued to keep and detain Mary Eloise in hiding and concealment in some foreign state or country in places unknown to this plaintiff; thus and by such misconduct on the part of defendants, plaintiff never had the care, custody, companionship, or services of the child from July, 1912, to July, 1921, when, by virtue of a habeas corpus proceeding prosecuted in the Gibson circuit court, actively defended by all of the defendants except Wilbur and Chester, she recovered possession of the child, but notwithstanding the court's order giving the possession of the child to appellee, the defendants Estella and Chester jointly, severally, willfully, maliciously, and unlawfully continued to detain, withhold, oppose, and by advice unduly influence the child against going with appellee, and actually resisted appellee's possession of her, until, by appellee's persuasion, assisted by police officers, friends, and bystanders, to her great humiliation, mental and physical distress and suffering, she gained possession of the child, who accompanied her to Indianapolis; that thereafter, as shown by the supplemental complaint, defendants continued the conspiracy and wrongful conduct by means of letters, at times using a secret code either directly to the child or through friends or relatives of defendants, and in the fall of 1921, without any cause for so doing, they unsuccessfully applied to the juvenile court in Indianapolis for an order for the delivery of the child to them, thus further alienating the affections and estranging the child against its mother, and to further annoy, humiliate, and thereby deprive her of the custody, control, companionship, and services of the child; that on July 3, 1923, defendants spirited the child away and unlawfully took her from her home in Indianapolis to the defendants Estella Montgomery and Wilbur Montgomery in the state of Florida, where they have ever since wrongfully and unlawfully kept and controlled her, to the great discomfort, anguish of heart, distress of body and mind of plaintiff.

Returning to the original complaint, it appears that in December, 1917, Wilbur, then in Cuba and a fugitive from justice, returned to the United States, and in January, 1918, to the then Governor of this state from whom he sought a pardon, promising at his expense to take plaintiff to where the child was located and permit her to talk and be with the child, and at the close of the school term return her to Posey county and deliver her to plaintiff and obey any orders of the Posey circuit court in reference to the care and custody of the child. Wilbur, pursuant to his promise to the Governor, took plaintiff to the town of Wauchula, Fla., where the child was located, and where she was allowed to remain for three weeks, but during all of that time Wilbur, his father and mother, kept exclusive control of the child, and refused plaintiff to be with her alone, and during which time they (Wilbur, his father and mother) treated plaintiff scornfully, coldly, and unbearably, finally ordering her to return home, which she did; that in June, 1918, the child was returned by defendants to their home in Posey county, and Wilbur received a pardon. Plaintiff, on learning of the child's presence in the state, commenced proceedings to restrain the removal of the child from Posey county until her petition asking a modification of the divorce decree could be heard, but, before service upon defendants could be had, Wilbur, in the month of June, 1918, again abducted the child and removed it beyond the jurisdiction of the court, aided, abetted, and assisted by his codefendants; that on June 25, 1918, the Posey circuit court modified the divorce decree by giving plaintiff the exclusive care and custody of the child, although, in violation of this decree of the court, defendants wrongfully and maliciously kept, harbored, and detained the child in some foreign state or states until about July 1, 1921, during which time plaintiff never saw or was permitted to see, write, or correspond with her; that by reason of the misconduct of the defendants this plaintiff was compelled to and did incur expenses in the sum of $5,000 by way of travel, board bills, employing lawyers, detectives, and police officers, in pursuit of the child, and in an effort to locate, find, and to regain the possession and custody of her; that by reason of the wrongs and misconduct of the defendants for a period of nine years continuously the affections of the child for its mother were undermined, alienated, and destroyed, and plaintiff entirely deprived of the comfort, companionship, society, assistance, and services of the child, whereby she suffered great and agonizing distress of both mind and body, whereby her happiness, peace of mind, and health were destroyed.

Appellants answered the complaint by a general denial, and the two and six year statutes of limitations, and by a general denial to the supplemental complaint. The asserted immaterial allegations in the complaint included in the court's instructions, the two-year statute of limitations, and the admission of certain exhibits and testimony over objection, form the basis for practically all the questions submitted to this court for review.

The question on the two-year statute of limitations is presented in various ways; that is to say, by objections to the introduction of certain evidence, and by exceptions to the giving and in...