Pierce v. Jeffries

• Decision Date: 22 March 1927
• Docket Number: 5708.
• Citation: 137 S.E. 651,103 W. Va. 410
• Parties: PIERCE v. JEFFRIES et al.
• Court: West Virginia Supreme Court

137 S.E. 651

103 W.Va. 410

PIERCE v. JEFFRIES et al.

No. 5708.

Supreme Court of Appeals of West Virginia.

March 22, 1927

Submitted March 15, 1927.

Syllabus by the Court.

Where the mother of an illegitimate child has not abandoned it, nor by contract express or implied parted with its custody and care, she can recover it by habeas corpus from strangers who have acquired its possession without her knowledge, it not being shown that she is unfit to have its custody and control, and it being shown that her parents, who are of high moral character and standing, and who are possessed of a reasonable amount of worldly goods for its maintenance and support, assisted by the mother, are willing and desirous of taking it into their home to rear and educate.

Error to Circuit Court, Braxton County.

Habeas corpus by Phyllis Pierce against T. E. Jeffries and another to recover the custody of a child.Judgment for defendants and the relator brings error.Reversed, and custody awarded to the relator.

L. H Barnett, of Weston, for plaintiff in error.

James E. Cutlip and Van B. Hall, both of Sutton, for defendants in error.

LIVELY J.

This writ of error was awarded to a judgment of the circuit court denying Phyllis Pierce the relief sought by her in a habeas corpus proceeding to recover the custody of her infant son.

The relator, Phyllis Pierce, a young woman 23 years of age, was married in 1920, to Everett Roger Pierce, in St. Louis, Mo but for the past few years she has been living apart from her husband.Before separating from him, she became the mother of a boy, now 4 years of age.Relator is the daughter of Rev. J. B. Carder(a retired minister) and his wife, May Carder, who reside in the small town of Burnsville, W.Va.During the latter part of December, 1924, relator, who had been staying with her parents, went to Clarksburg, W.Va., where several weeks later she gave birth to a baby boy, at a hospital in that city.Her mother and father did not know that she was expecting a child.She obtained a position as telephone operator, and secured a nurse for her baby, who took care of it while the mother worked, until she(the nurse) moved away from the city.Being unable to obtain another nurse, she conceived the plan of taking the child to Burnsville and secretly leaving it with her parents, and then, after they had become attached to it, to confess parenthood, and seek their forgiveness for the shame she had brought upon their name.In furtherance of this plan, she took a night train out of Clarksburg, on April 4, 1925, and brought her child to Burnsville, arriving there about 4 o'clock in the morning.She went to the rear of her parents' home and placed the baby, which was in a basket, near the windows of her parents' sleeping room.She then concealed herself.The baby began to cry, and, after seeing her father take the child into the house, she left town unobserved, and went back to Clarksburg.The baby was warmly wrapped in the basket, which contained some of the child's clothing, a small amount of money, and some food.A note was also placed therein, telling the finder to keep the baby until called for, and that the child's name was "Bobby."This note was written for the relator by a woman in Clarksburg.The father and mother, being unaware of the identity of the infant, consented to its passing into the hands of neighbors, and it came into the possession of the defendants to this proceeding, T. E. Jeffries and his wife, Bird Jeffries, about 2 or 3 days after it had been left with the parents, who have had the custody of it since that time, and who have expressed a desire to adopt the child as their own.

About 2 or 3 weeks after this event took place, a justice of the peace at Burnsville, Rucks by name, went to Clarksburg armed with a warrant for the relator's arrest, for what crime it does not appear.This warrant was not based upon sworn complaint.Rucks told the relator that he had a warrant for her arrest, and asked her if she was the mother of the child, which was then in the hands of the Jeffries.She denied motherhood, but admitted that she had brought it to her father's home.She said that it was the child of her brother by a girl in Ohio.At this time neither of the relator's parents knew that she was the mother of the child.

The information received from the justice of the peace that the baby was in the hands of the Jeffries was the first knowledge relator had of the fact that her baby had passed into the custody of strangers.Shortly after this she took steps to regain the custody of her baby, as a result of which Mr. Jeffries, at his wife's request, came to see relator at Clarksburg in an endeavor to secure her consent to their retaining possession of the child.She refused to assent.Finally, on Mr. Jeffries' last visit to Clarksburg, he informed her that he and his wife had decided to surrender the baby to her.A day was set for the relator to come to Burnsville for her child, and she arrived on the appointed day.Mrs. Jeffries felt that she could not give the child up, and, in reply to the relator's entreaties that she do so, Mrs. Jeffries told her to come the next morning, and they would let her know definitely what their decision would be.The next morning relator was informed by Mrs. Jeffries that they had decided to keep her baby, and a little later Mr. Jeffries told the Rev. Carder that "if he got the baby they would have to get it through the courts."Thereupon relator instituted this habeas corpus proceeding; and, upon the pleadings filed therein and the evidence introduced, the trial court entered the judgment complained of, adjudging that respondents retain the custody of Robert Pierce until the further order of the court.

The relator is employed as a Bell telephone operator in Clarksburg.She says that it is her intention, if she is awarded the custody of the child, to arrange for it to be kept by her parents, with her aid and assistance.The parents are willing to keep the child and care for it.They own two tracts of land near Burnsville, one of 60 acres, another of 61 acres.A large portion of one of these tracts is farmed by the relator's father, a retired minister, a man 60 years of age, and apparently in good health.They also own their home at Burnsville, although $800 purchase money is still due on this property.They had been living in this house at Burnsville for about 9 months at the time this case was tried.The parents have a cash income of about $700 a year derived from gas well rentals and from the father's pension as a retired minister.Besides this they have the crops produced on their farm.There is considerable timber on one of the tracts mentioned above, and the Rev. Carder says that he intends to cut and manufacture it.In addition to the 4 year old child of the relator, her parents have living with them their son, 24 years old, and their daughter, 16 years of age.

The defendantT. E. Jeffries is about 56 years of age, and his wife is 36.He has no children of his own, but Mrs. Jeffries has a married daughter.Mr. Jeffries has been engaged in numerous business enterprises during the years he has lived in Burnsville, the last of which was his hotel business, but just before the hearing of this case the hotel which he owned and ran, was destroyed by fire, and so at that time (July 1925)he was not engaged in any business.His plans were uncertain, he not being sure whether he cared to venture forth again in a business enterprise in Burnsville, or whether he would go to Ashland, Ky.Mr. Jeffries owns real estate in Burnsville valued at about $7,600, while his debts amount to more than $8,000, a part of which is represented by purchase money due on the hotel property.This last-mentioned property was insured for $6,500.So, when ...