Rivers v. Mitchell

• Decision Date: 06 December 1881
• Citation: Rivers v. Mitchell, 57 Iowa 193, 10 N.W. 626 (Iowa 1881)
• Parties: RIVERS v. MITCHELL, CIRCUIT JUDGE.
• Court: Iowa Supreme Court

57 Iowa 193

10 N.W. 626

RIVERS

v.MITCHELL, CIRCUIT JUDGE.

Supreme Court of Iowa.

Filed December 6, 1881.

Certiorari to Polk circuit court.

On the tenth day of July, 1880, there was filed in the court below a petition in habeas corpus. It appears from the allegations thereof that the plaintiff herein and Sophia B. Rivers are husband and wife; that they have two minor children of tender years, one being about nine years old and the other younger; that a separation of the husband and wife had taken place on account of the gross neglect of the husband to provide for his family; that the children were taken by the wife from Des Moines (the home of the parties) to her father's residence at Oskaloosa in May, 1879; and that she and the children remained there until July 2, 1880, when said John D. Rivers, in the night-time, secretly, and without the knowledge or consent of his said wife, removed and carried away said children and concealed them from their mother. The petition is entitled in the name of the children, by Sophia B. Rivers, their natural guardian, and avers that, according to the best belief of petitioner, the said children were concealed by said Rivers in or near the city of Des Moines, or in the county of Dallas or Polk. Mrs. John Rivers, the mother of John D. Rivers, was also made a defendant. It is claimed that the mother of said children is entitled to their custody and care.

The writ of habeas corpus was issued, and said Rivers, in addition to a general denial, answered thereto to the effect that he had possession and control of said children, but that on the fifth day of July, 1880, he transferred said control to Mrs. John Rivers, his co-defendant, and that she and said minors have been non-residents of this state, and have not been within the state, and he has had no control nor possession since his transfer of them to his co-defendant. It elsewhere appears in the record that the children were in the state of Missouri, at a place about five miles south of Cincinnati, in Iowa. The petitioner moved the court to strike the answer from the files because the same was equivocal and not responsive to the petition. The motion was sustained, and the defendant was given until the next day to make further pleading. On the next day he filed a motion for a change of venue, and a motion to dismiss the proceeding for want of jurisdiction. These motions were overruled. On the fourteenth day of July, 1880, an order was made finding that said Rivers had wilfully disobeyed the writ by refusing to produce the said minor children, and he was committed to the jail of the county until he should comply with said writ and produce said minors in open court. Thereupon the said Rivers applied for and obtained a writ of certiorari from this court for a review of said proceedings.C. C. Cole, for plaintiff.

George H. Lewis, for defendant.

ROTHROCK, J.

1. It is claimed that the judge of the circuit court at Des Moines did not have jurisdiction to issue the writ because the application was not made to the court or judge most convenient in point of distance to the applicant, as provided in section 3452 of the Code. In Thompson v. Oglesby, 42 Iowa, 598, it was held that the person restrained is the applicant. As we understand it, the residence of John D. Rivers was at Des Moines, in Polk county. The petition charges that the children were, to the best belief of the petitioner, in Des Moines or in Polk county, or in Dallas county. This was sufficient to authorize the issuance of the writ. Indeed, if it were only alleged that John D. Rivers was in Polk county, and that he unlawfully restrained the minor children, the presumption would be that he and the children were together. Thompson v. Oglesby, supra. The court, then, having had jurisdiction to issue the writ, did the answer show facts sufficient to oust the jurisdiction? Or, rather, did Rivers show good cause for not producing the children in court, as provided in section 3475 of the Code? We think he did not. These contests between husbands and wives, who are living separately and apart from each other, as to the custody of their minor children, are peculiar....