Rust v. Vanvacter

• Decision Date: 31 October 1866
• Citation: 9 W.Va. 600
• Parties: HENRY D. RUST v. MARY E. VANVACTER.
• Court: West Virginia Supreme Court

9 W.Va. 600

HENRY D. RUST v. MARY E. VANVACTER.

Supreme Court of West Virginia.

October 31, 1866

1. A writ of habeas corpus ad subjiciendum to obtain possession of an infant by its father under the first section of the sixtieth chapter of the acts of the Legislature of 1872-3, is proper. Such writ may be ordered, issued and return made thereon, and the case decided by a judge of the circuit court in vacation. The petition for such writ, may be in the name of the father.

2. The proper office of the said writ is to release from illegal restraint; and when the party is of years of discretion and sui juris, nothing more is done than to discharge him. But if he be not of an age to determine for himself, the court or judge must decide for him, and make an order for his being placed in the proper custody; and to enable the court or judge to do so, it must determine to whom the right of the custody belongs.

3. When the infant is between eight and nine years of age, it is not necessary to allege in express terms she is detained against her will. It is sufficient if it appears upon the face of the petition that the petitioner has a legal right to the custody of the infant and the detention of the child from the father in violation of that right.

4. It is not regular or proper to demur to the petition, but the proper course, ordinarily, is to produce the child, make return, and then move to quash the writ, issued upon insufficient cause. The petition, however, is not always to be looked to exclusively to ascertain if the infant is detained without lawful authority, for the language of the law is, " who shall apply for the same by petition showing by affidavit or other evidence probable cause to believe that he is detained without lawful authority."

5. The refusal of the judge to require of the petitioner, bond with security for costs in this case, is not error for which an Appellate Court will reverse the order and judgment of the court as to the proper custody, & c., of the infant.

6. The father is the natural guardian of his infant children, and in the absence of good and sufficient cause shown to the judge or court, such as ill usage, grossly immoral principles or habits, want of ability, & c., is entitled to their custody care and education.

7. Whatever may be the rule at common law upon the subject, with us, the return of the person to whom the writ is directed is not conclusive, for the language of our statute is, that the court or judge, after hearing the matter both upon the return and any other evidence, shall, & c. The return may therefore be contradicted or disproved, in whole, or part, by other evidence.

8. A case in which a judge of a circuit court in vacation, upon a writ of habeas corpus, ordered an infant child between eight and nine years old to be delivered to the custody of her father, by her grandmother, and the Appellate Court affirmed the order and judgment. See opinion of the Court.

Supersedeas to an order of the judge of the circuit court of Jefferson county, entered on the nineteenth day of November, 1874, in a habeas corpus case before him therein pending, in which Henry D. Rust was plaintiff, and Mary E. Vanvacter was defendant.

The facts are set forth in the opinion of the Court.

Hon John Blair Hoge, Judge of said circuit court, presided at the hearing below.

On habeas corpus, the refusal of the judge to require of the petitioner bond, with security for costs, is not an error for which an appellate court will reverse an order and judgment as to the custody of an infant.

D. B Lucas for said Mary E. Vanvacter, plaintiff in error.

W. L. Wilson and W. H. Travers for said Rust, defendant in error.

HAYMOND, PRESIDENT:

This is a case of habeas corpus ad subjiciendum. The writ of habeas corpus was ordered to be issued by the Judge of the circuit court of Jefferson county in vacation, and was issued, and made returnable before the Judge of said court, at the courthouse thereof, on the twenty-fourth day of September, 1874, at 11 o'clock, A. M. The writ was ordered to issue, by the judge, on the nineteenth day of September, and it issued on the twenty-first day of said month of September. The said writ was issued upon the petition of Henry D. Rust. The petition presented by said Rust to the Judge for the writ, alleges that, " he is the father, by a former wife, of an infant child, Anna Elizabeth Rust, now between eight and nine years of age; that its mother, Anna Maria Rust, who was the daughter of Mrs. Mary E. Vanvacter, died on the twenty-ninth day of August, 1866, when the said infant was about five months old; that the said infant, immediately after the death of its mother, passed into the custody of its said grandmother, where it has been ever since the loss of its said mother, and where its wants have been suitably supplied by your petitioner; that, from time to time, and especially since the twentieth day of October, 1872, when your petitioner married again, he has repeatedly demanded that his child should be surrendered to him by its said grandmother, that he might bestow upon it such care and attention as are due to it, and which he is abundantly able to give to it, and that himself and wife, both of whom are childless, might be afforded that comfort which is to be derived from the possession of an only child; but your petitioner avers that, notwithstanding these repeated demands, the said Mary E. Vanvacter has persistently refused to surrender his said daughter to the custody of your petitioner. Wherefore, and since your petitioner is remediless save in a court having proper cognizance of the matter, he humbly prays that the writ of habeas corpus ad subjiciendum may be granted, directed to the said Mary E. Vanvacter, to produce the body of said Anna Elizabeth Rust before your Honor, at such time as may be designated in the said writ, that said Mary E. Vanvacter may show cause, if any she have, why the said infant is detained by her, and not delivered as, of right, it should be, to your petitioner; that the said infant be taken from the custody of the said Mary E. Vanvacter, and delivered to the custody and control of your petitioner, and that such other and further relief as the nature of the case, and as may seem meet to equity and justice, be afforded. The petition is verified by the affidavit of the petitioner.

On the return day of the writ, Mary E. Vanvacter made this return to the writ, viz: In the matter of the petition of Henry Rust, and the writ of habeas corpus ad subjiciendum which issued from the circuit court clerk's office of Jefferson county, on the twenty-first day of September, 1874, returnable on the twenty-fourth day ef September, 1874, and which was served on respondent on the twenty-third day of September, 1874, this respondent demurs to said petition, and denies the authority of the Judge of said court to order the said writ to be returned before him, to be tried in vacation, and without bringing the body of the said child, in obedience to said writ, but protesting against all contempt, or disrespect, to said Judge, or court, prays that she be not compelled to answer further, but asked to be hence dismissed with costs. This return is also verified by the affidavit of the respondent.

It appears that the judge sustained an exception, by the petitioner, to the conclusiveness of this answer and return to further inquiry, and ordered the respondent to produce the body of the child and answer over." To which ruling, the respondent excepted. It further appears that the respondent then made another or amended answer, in these words, viz " Producing the body of Anna Elizabeth Rust, this respondent, Mary E. Vanvacter, in obedience to the write of habeas corpus ad subjiciendum, and for further answer to the same, says that it is true, as stated in the petition, that the petitioner Henry D. Rust, is the father of the infant, Anna Elizabeth Rust, by a former wife, Anna Maria Rust, the daughter of this respondent, and that the infant's age and the date of its mother's death are correctly stated in the petition. The respondent says that her said daughter, on her death-bed, in the presence, and with the full consent and approbation of the petitioner, committed said child to the custody and charge of this respondent for nurture, maintenance and education, until she should reach her majority, and that immediately after the mother's death, when said child was of the tender age of five months, she was brought by her father, the petitioner, in accordance with said understanding, to the house of respondent, who has since kept and maintained and most tenderly cared for her; that when so brought, the child was almost in the arms of death, and that nothing but the motherly and constant nursing of this respondent saved her life; that the child from that day to this, has been entirely maintained, clothed and cared for by this respondent, her father contributing nothing to any of these objects, except at long intervals to make her an occasional present of some article of dress; that the child has never known any mother than respondent, and acts and feels towards, and regards her as her mother, calling her " ma," and loving her with all the deep affection of a sensitive and amiable nature; that the child is now sick, and, as respondent believes, has the whooping cough, and this respondent believes that the blow of a separation at this time would injure her health, and most probably endanger her life; and she is bitterly averse to separating from her " ma," and the very suggestion and threat by the institution of this proceeding have, by her constant weeping and depression, increased her indisposition; that this respondent is abundantly able to maintain and educate said infant, whom s...