Palin v. Voliva

• Decision Date: 22 April 1902
• Docket Number: 19,742
• Citation: 63 N.E. 760,158 Ind. 380
• Parties: Palin et al. v. Voliva, Guardian
• Court: Indiana Supreme Court

63 N.E. 760

158 Ind. 380

Palin et al. v. Voliva, Guardian

No. 19,742

Supreme Court of Indiana

April 22, 1902

From Fountain Circuit Court; J. M. Rabb, Judge.

Habeas corpus by Robert N. Voliva, guardian of Flora Moffitt against Orange Palin and another, to obtain the custody of his ward. From a judgment for plaintiff, defendants appeal.

Affirmed.

C. R Milford, for appellants.

I. E Schoonover and J. B. Martin, for appellee.

OPINION

Monks, J.

This proceeding was commenced July 26, 1901, by appellee, as guardian of Flora Moffitt, a minor, against the appellants, to obtain, by writ of habeas corpus, possession and control of his ward, whose father and mother were deceased. The proceeding, which was commenced and determined in vacation, resulted in an order awarding the custody of the ward to appellee as such guardian.

It is claimed by appellants that the court erred in awarding the custody of said ward to appellee, because the same is not supported by the evidence, and is contrary to law. In this State, where there is no father or mother living, as in this case, the guardian of a minor is entitled to the custody and control of such minor during minority. § 2682 Burns 1901, § 2518 R. S. 1881 and Horner 1901. Schleuter v. Canatsy, 148 Ind. 384, 388, 47 N.E. 825; Johns v. Emmert, 62 Ind. 533; Bounell v. Berryhill, 2 Ind. 613. This provision of the statute is mandatory. Johns v. Emmert, supra, p. 536. The evidence given on the hearing does not show any reason why appellee's legal right to the custody of his ward should be denied.

It appears from the evidence that on May 25, 1901, the Fountain Circuit Court, in a proceeding brought by appellee as such guardian against Cora Palin, one of the appellants, for the custody of said ward, adjudged that appellee "was the guardian of said ward and entitled to the custody of her person and property, and that said Cora Palin had interfered with and usurped and withheld the custody of the person of said ward from the appellee, her guardian, and that appellee have the custody of the person and property of his said ward." Afterwards appellee removed his ward from the house of appellants and placed her with her brother. On the evening of July 14th appellee and his ward attended church and, at the close of the services, after a conversation between the ward and appellants, she went with them to their home. Appellants claim that this was with appellee's consent, while he claims that it was without his consent and against his will. About two days afterwards, appellee, by his agent, at the home of appellants, demanded of them the possession of his ward. Afterwards, on July 26, 1901, appellee commenced this proceeding. It would unnecessarily extend this...