Richards v. Collins

• Decision Date: 17 June 1889
• Citation: 17 A. 831,45 N.J.E. 283
• Parties: RICHARDS v. COLLINS et ux.
• Court: New Jersey Supreme Court

17 A. 831

45 N.J.E. 283

RICHARDS

v. COLLINS et ux.

Court of Errors and Appeals of New Jersey.

June 17, 1889.

(Syllabus by the Court.)

Appeal from an order advised by VAN FLEET, V. C, directing appellant to surrender a child 12 years and 8 months old to her parents.

Riker & Riker, for appellant. J. Frank Fort and James M. Fisk, for respondents.

KNAPP, J. Upon the respondents' petition to the chancellor, the writ of habeas corpus went to the appellant, commanding him to have before the court Clara Belle Collins, a child of the petitioner, who, as the petition alleged, was in the appellant's custody, and restrained of her liberty. The appellant made return to the writ under oath, as required by the statute, (Revision, p. 470, par. 15,) setting forth the causes and circumstances under which the said Clara was abiding in his family. No answer was filed to the return.

The first matter to be considered is the effect to be given to such return in deciding the controversy. The case proceeded to determination before the vice-chancellor upon the petition and return. The rule generally applicable to pleadings between parties in court is that facts material in the cause, and formally averred in a pleading, unless denied by the party against whom they are pleaded, are, for the purposes of decision, accepted as true by the adjudicating tribunal. There seems to be no good reason for thinking the principle inapplicable in a proceeding of this character. In Bennet v. Bennet, 13 N. J. Eq. 114, upon a return made by the respondent to the writ of habeas corpus, the petitioner, upon the coming in of the return, applied for and had leave to file her answer traversing the return, and an order was made that either party might take testimony upon the answer being filed. So in Baird v. Baird, 18 N. J. Eq. 194, the same course of practice was pursued. These cases show the practice to be to obtain leave to traverse the facts stated in the return, if the petitioner questions their truth. The court will grant this to the petitioner when the truth of the return is not conceded. When the truth of the return is denied by answer, then an order to take testimony upon the issue of fact thus made is allowed. If the petitioner sees fit to bring on the hearing on the averments in the petition and the return, which he may do, he must be considered as conceding the truth of all material facts stated in the sworn return. Otherwise their truth could not be established, for the rule to take testimony is granted only when an issue of fact is formed. At common law the return to a writ of habeas corpus could not be controverted. Bacon, Abr. "Habeas Corpus," par. 13. The remedy for false return was an action on the case by the party or by indictment. Subsequently, instead of indictment, the courts punished for false return as a contempt.

The decree in this case ordered the custody of the infant to be surrendered to its parents. It is said that the decree goes too far in any event when it does more than relieve from illegal restraint. The chancellor in this state exercises a concurrent jurisdiction with law judges on habeas corpus. No doubt it is true that in the ordinary use of the writ the court may content itself, where the subject of the alleged imprisonment is capable of self-protection, with a judgment or order freeing the person from illegal custody, and restoring him to liberty. But it is quite clear that in this use of the writ judges have not refused to exert a larger power, and have quite frequently, in the case of children, taken the subject of illegal restraint from the custody of one and handed it over to another. That this is, and from earlier times has been, the rule of practice on habeas corpus is made apparent in the opinion delivered in the court of errors in State v. Baird, 19 N. J. Eq. 481, and also by the opinion of the chancellor in the. same case in 18 N. J. Eq. supra. The court may stop with the mere removal of restraint, or in its discretion may go further, and determine for the time being the custody of the subject of the writ. But the court of chancery exercises a far more extended control in respect to the right of custody of children, in virtue of an inherent jurisdiction over that subject. In the exercise of this higher authority, that court may permanently fix the status of infants, even in disregard of the legal rights of parents, where the welfare of the infants requires it. Nor is it material to the exercise of this power in what way the subject is brought into court. In State v. Baird the petition was to the chancellor, as one of the judicial officers authorized by statute to issue the writ, and not to him in the exercise of the more general jurisdiction of the court of chancery. But the return to the writ and the answer to the return filed by the petitioner presented a case for the cognizance of the court in its more general jurisdiction. The chancellor doubted whether, in the proceeding, the general powers of the court of equity were invoked, yet on appeal the court of errors declared that, when an issue is made by the pleadings and proof on the question of the right to the permanent custody of infants, the case addresses itself to the general...