Partch v. Baird

• Decision Date: 24 April 1925
• Docket Number: April Term, 1924.,No. 10,10
• Parties: PARTCH v. BAIRD.
• Court: Michigan Supreme Court

230 Mich. 615

203 N.W. 405

PARTCH

v.BAIRD.

No. 10, April Term, 1924.

Supreme Court of Michigan.

April 24, 1925.

On rehearing. Judgment of trial court reversed.

For former opinion, see 227 Mich. 660, 199 N. W. 692.

Argued before McDONALD, C. J., and CLARK, BIRD, SHARPE, MOORE, STEERE, FELLOWS, and WIEST, JJ.

Clark and Moore, JJ., dissenting.Cavanaugh & Burke, of Ann Arbor (Henry C. Bogle, of Detroit, of counsel), for appellant.

Stivers & Laird, of Ann Arbor, for appellee.

BIRD, J.

This case is certiorari to habeas corpus. The case was decided and an opinion filed which will be found reported in 227 Mich. at page 660, 199 N. W. 692. Upon application of defendant a rehearing was granted.

The record discloses that the original judgment was entered on the 28th day of September, 1923, and that at the succeeding term of court, on October 6, 1923, an amended or supplemental judgment was entered. The first judgment did not find in express terms that the plaintiff was unfit to have the custody of his boy. The second judgment did so find. We held that we could not consider the second judgment because it was made at a subsequent term of court and without notice. We did review the first judgment (a) because the trial court made no express finding that plaintiff was unfit to have the care and custody of his boy; and (b) because there was not sufficient proof to sustain such a finding.

Defendant, in her application for a rehearing, insists that the court made a finding of unfitness of the father in the first as well as in the second judgment.

(a) In view of this variance in the understanding of the record, we quote the concluding paragraphs of both judgments, which the court in his return certifies to be true and correct copies. In the first judgment entered on September 28th, after reciting some of the evidence produced, it concludes as follows:

‘There was testimony to show that the plaintiff had great austerity of temper and that he punished the child when he was under the age of three years to such an extent that the child could not lie down. The defendant testified that she spoke to him about the punishment that he inflicted and that he said that he was very sorry of it and that he did wrong. He could only have been sorry for unjust and unreasonable punishment. Plaintiff did not deny that he said these things to the defendant.

‘For reasons above set forth, as well as other considerations, I am compelled to hold, and do now hold, that the said defendant, Grace E. Baird may continue to have the custody and control of the said Louis Edgar Partch, Jr., and that the father of the said child, Louis Edgar Partch, Sr., is hereby denied the right to custody and control of the said child, and it is so ordered and adjudged by the court.'

The second judgment entered October 6th concludes:

* * * ‘And it further appearing unto the court that the plaintiff is a man of austere temper which at times he has been unable to restrain and control, and that while said child, Louis Edgar Partch, Jr., was under the age of three years, the said plaintiff whipped the said child so severely and to such an extent that the child was unable to sit down or to lie on his back for several days; and the court being satisfied that the said plaintiff is not a fit, suitable or proper person to have the care, custody, and control of Louis Edgar Partch, Jr., and that it is to the best interests and welfare of the said child to leave him in the care, custody, and control of his grandmother, Grace E. Baird, the above-named defendant, now, therefore, on motion of Stivers & Laird, attorneys for the defendant, it is ordered that judgment be, and the same hereby is, rendered in this cause in favor of the above-named defendant, Grace E. Baird, against the above-named plaintiff, Louis Edgar Partch, Sr., and that the care, custody, possession, and control, of Louis Edgar Partch, Jr., be, and the same hereby is, granted to and vested in the above-named defendant, Grace E. Baird, with costs in this case to be taxed.'

Practically the only difference in the judgments is the express finding in the October judgment that plaintiff is unfit to have the care and custody of his child. We assume that the second judgment of October 6th was filed for the purpose of injecting the ‘finding of unfitness' as to other reason is apparent. This view is further strengthened by the fact that the trial court included in its return a copy of the second judgment, and its agrees with the return, but it did not include a copy of the first judgment. We, therefore, feel bound to accept the trial court's return as to the contents of the September judgment, which is certified to in the following language:

‘I further certify that upon the conclusion of the said hearing, and after due deliberation, and having cognizance of the facts as presented in the testimony, to wit: On the 13th of September, 1923, my opinion was filed with the clerk of the circuit court of the county of Washtenaw, and of which the following is a true and correct copy.'

We are unwilling to believe that the judge would have made this certificate under his oath of office had it not been true that the foregoing quotation was a copy of the judgment entered on September 28th.

Another consideration in this connection is this: If the September judgment, as well as the October judgment, found petitioner unfit and unsuitable for the custody of his boy, as counsel contends, then both judgments were exactly alike. It is inconceivable that the judge would enter two judgments exactly alike. The second judgment was entered for some purpose, and that purpose was to inject into it a finding of unfitness. This was charged on the argument by counsel for petitioner, and the judge's return to the writ of certiorari shows it to be true.

(b) As to the second ground upon which the case was decided, we may say that we are still of the opinion that the testimony is not sufficient upon which to base a finding of unfitness of the plaintiff to have the care and custody of his son.

While it is true that we do not weigh the evidence in certiorari to see in which direction the preponderance lies, we do examine it to see if it is sufficient to support the conclusion reached. In Jackson v. People, 9 Mich. 111, 77 Am. Dec. 491, it was said:

‘The office of a certiorari is not however to review questions of fact, but questions of law. And in examining into the evidence the appellate court does so not to determine whether the probabilities preponderate one way or the other, but simply to determine whether the evidence is such that it will justify the finding as a legitimate inference from the facts proved, whether that inference would or would not have been drawn by the appellate tribunal.'

In re Radford, 168 Mich. 474, 134 N. W. 472, it was said:

‘The writ of certiorari to review proceedings for the disbarment of an attorney at law (3 Comp. Laws, § 10497), brings before the Supreme Court for review only questions of law, not of fact; and the court will examine the evidence only to determine whether it justifies the finding of the court as a legitimate inference therefrom.’ In re Coburn, 207 Mich. 350, 174 N. W. 134.

The respondent did not allege in her answer nor prove any facts on the hearing from which a legitimate inference could be drawn that the father was an unsuitable person to have the custody of the boy. One instance of the father punishing the boy was shown. If this makes him unfit and unsuitable then respondent is...