Murphree v. Hanson

• Citation: 197 Ala. 246,72 So. 437
• Decision Date: 11 May 1916
• Docket Number: 6 Div. 283
• Parties: MURPHREE v. HANSON et al.
• Court: Supreme Court of Alabama

72 So. 437

197 Ala. 246

MURPHREE v. HANSON et al.

6 Div. 283

Supreme Court of Alabama

May 11, 1916

Rehearing Denied June 30, 1916

Appeal from City Court of Birmingham, John C. Pugh, Judge.

Habeas corpus by Mrs. Willean Murphree against N.J. Hanson and others. From a judgment for respondents, petitioner appeals. Transferred from the Court of Appeals under section 6, Act April 18, 1911 (Acts 1911, p. 449). Reversed and rendered.

Anderson C.J., and McClellan, J., dissenting.

G.M Edmonds and C.B. Powell, both of Birmingham, for appellant.

Cabaniss & Bowie and Albert Browdy, all of Birmingham, for appellees.

GARDNER J.

This was a proceeding before the judge of the city court of Birmingham brought by appellant, Mrs. Willean Murphree against N.J. Hanson and his wife, for the custody of a female child by the name of Lois Patton Spivy, of the age of about one year and five months at the time of the filing of the petition, January 30, 1915.

The mother of the child died when it was about ten days old; and the father, after placing the child with one or two other persons for care and attention, finally took it to the home of the respondents under an agreement to pay the sum of $25 per month for its keep and attention. The child at that time was about five weeks old. A few days thereafter the father also came to live with the respondents as a boarder. There he remained until about April, 1914, when, on account of his physical condition, he left, to become a patient at the Johns Hopkins Hospital in Baltimore, leaving his child in the care of respondents and providing for the monthly payments to be made during his absence.

The respondents insist that the father indicated his desire that, should his sickness prove fatal, they should take care of and provide for the child. Their evidence in this connection, however, discloses that the father made mention of some of his people who resided in Virginia and who, he thought, would like to have the child. The father died. He made no will. An administrator was duly appointed, of his estate, valued at from $12,000 to $15,000, and this child is the sole heir.

An account for board, clothing, and medicine for the child was duly rendered, and was paid by the administrator to the respondent N.J. Hanson. A copy of this account is set out in the record. J.E. Spivy, an uncle, and William Spivy, the grandfather of the child, visited Birmingham and saw the respondents with reference to the child. It is clear from the record that the question of the custody of this child was being discussed and considered by all the parties concerned. It also appears that the petitioner in this cause, residing in the city of Mobile, is a sister of the child's mother, and is its nearest relative residing in this state. It further appears that others, bearing similar degrees of relationship, as well as the child's paternal grandfather, all of whom reside without the state, are willing that the petitioner have its custody and control in preference to themselves.

On September 24, 1914, a petition was filed in the probate court of Jefferson county by the American Trust & Savings Bank, a corporation, seeking to be appointed the guardian of the minor, Lois Patton Spivy. The petition set up that the minor had no father or other legal guardian residing in this state, and that it had property in this state estimated to be worth about $10,000. The petition was by the "American Trust & Savings Bank, a corporation existing under the laws of the state of Alabama." On September 28, 1914, the probate court, acting upon said application, issued letters of guardianship to the said "American Trust & Savings Bank in and upon the person, goods, chattels, rights and credits of Lois Patton Spivy, a minor."

On October 16, 1914, respondent N.J. Hanson wrote to J.E. Spivy, the child's uncle, residing in Clinchport, Va., informing him that the probate court had appointed said bank as guardian of the child and of her estate, and that respondent could not let him have the child if he came for her.

It very satisfactorily appears to our minds, from the evidence in this case, that the petition of the bank to be appointed guardian, and the appointment thereof, was at the instance of the respondent N.J. Hanson. The negotiations to this end seem to have been carried on by George A. Blinn, Jr., general manager of the Excelsior Laundry of Birmingham, at which concern the respondent N.J. Hanson held a responsible position, and where he had been working a great number of years. Mr. Blinn testified that he recommended to Mr. Hanson that he have the bank appointed guardian, and also recommended to the bank that it petition for the appointment; further stating that: "What I did in the matter was at the instance of Mr. Hanson. *** What I did was for the purpose of helping Mr. Hanson keep the child. Hanson asked me to help arrange for him to keep the child. That is what I went to see the bank for."

While there may be some slight contradiction of the above conclusion that this appointment was made at the instigation of the respondent Hanson, yet we think that the evidence of this witness, considered in the light of the facts and circumstances and of the letter written by the respondent, previously referred to, is sufficient to convince the mind of the correctness of the conclusion, beyond all reasonable doubt. We do not, however, consider this a matter of vital importance, or indeed, of any material importance on this appeal.

The petitioner saw the child, when she was in Birmingham for a two weeks' stay, in July, 1914. She testified that she saw the child every day, at the respondents', and that they never set up any claim to the child.

This proceeding was begun in the form of a petition for the writ of habeas corpus. The return upon the writ shows that the same was served on respondent N.J. Hanson, February 2, 1915, at about 9:30 a.m. On the same day the said respondent filed in the probate court his declaration of the adoption of the child. Respondent insists that he had not at that time been served with the writ; but it would seem quite clear from this record that even if he had not been served he knew that the petition had been filed or that such a proceeding would be immediately instituted. That this step was taken by him in anticipation of and by way of defense to a proceeding either already begun or imminent is quite clear.

The evidence for the respondents shows that when the bank was appointed guardian, and agreement was at once made with the president of the bank whereby the respondent N.J. Hanson was to continue to have the custody of the child, holding it, as it were, as the agent of the bank. The bank has had no assets of the minor, the same having been in the charge of the administrator. The respondents declined to surrender the custody of the child to the petitioner and, by way of defense, set up the appointment of the bank as guardian of the person as well as of the estate of said minor, and that they held custody for the bank; and further set up that N.J. Hanson, having adopted the child, was entitled to its custody.

Much evidence was offered on the hearing, touching the fitness of the respective parties to have the care and custody of this child. There was much evidence offered on the part of the petitioner, going to show that the father of the child objected to the respondents having any permanent charge of his child, because their religious faith was different from his own. The evidence offered by the petitioner shows that she is a woman about 38 years of age, in good health, living comfortably on her husband's income, in good surroundings, in the city of Mobile; that she is the child's aunt on its mother's side; that she has a child of her own, about 3 years of age and a brother living in Mississippi, about 50 miles from Mobile, who has children, and between whom and petitioner visits are interchanged. Petitioner is shown to be a woman of good standing, and no attempt has been made to impeach her.

The respondent N.J. Hanson appears to be a good, industrious citizen, with earning capacity a little in excess of that of petitioner's husband. He is shown to have come to this country from Denmark when a boy, and to have married Mrs. Hanson in the state of Iowa. The respondents have one grown daughter residing in the house with them. It is without dispute that they have taken most excellent care of this child; and no doubt respondent N.J. Hanson spoke most truly when he said, "We love it as our own."

Upon the conclusion of the evidence the court stated that in his judgment there was only one question to be considered, and that was, the welfare of the child; and that, being of the opinion that the child's welfare would be best promoted by the respondents retaining its custody, he denied the petition. Upon this appeal counsel for appellees insist that while the conclusion of the court could well be rested upon the consideration of welfare of the child, yet it might also have been rested upon the legal phases of the case, viz., upon the issue of the letters of guardianship to the bank, and the adoption proceedings.

The city court of Birmingham was, upon its establishment, empowered with full equity jurisdiction; and that the judge of this court, sitting in this case, possessed all the powers of the chancellor, is quite clear. Indeed we do not understand that this proposition is seriously controverted.

In Woodruff v. Conley, 50 Ala. 304, is the following language:

"Any matter affecting a child may become a subject of chancery jurisdiction; and it is immaterial whether it is brought to the attention of the court by bill, petition, or application for the writ of habeas corpus. The relief desired generally indicates the form

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