Scheiring v. Baker
| Decision Date | 09 October 1931 |
| Docket Number | No. 25137.,25137. |
| Citation | 177 N.E. 866,202 Ind. 678 |
| Parties | SCHEIRING v. BAKER et al. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Superior Court, Marion County; T. J. Moll, Judge.
Application for writ of habeas corpus by Glen K. Scheiring against Nettie Baker and another. From an order overruling motion to modify judgment and decree, plaintiff appeals.
Affirmed.
Robert R. Dalton, of Indianapolis, for appellant.
Ira M. Holmes, of Indianapolis, for appellees.
The basis for this appeal is shown by the order book entry of the trial court, as follows: “Come now the parties and the court being fully advised in the premises overrules the plaintiff's (appellant) motion to modify judgment and decree herein, to which ruling of the court, the plaintiff, at the time, excepts.”
September 20, 1924 (the eighteenth judicial day of the September term, 1924), appellant filed his verified petition, in which he alleged that appellees wrongfully seized and then illegally and without cause restrained Wanda G. Scheiring, aged nineteen months, without the consent or permission of appellant, and wrongfully deprives appellant, who is the father of the child, of the custody and possession of the child; and that a writ of habeas corpus issue. The writ was issued the same day commanding appellees to bring the child before the court.
October 2, 1924 (the twenty-eighth judicial day of the September term, 1924), appellees filed their return to the writ. Appellant filed exceptions to the return to the writ. October 14, 1924 (the eighth judicial day of the October term, 1924), appellees made an additional return to the writ; the cause was submitted to the court, and tried. The court found for appellees, that the custody and possession of the child in their hands was lawful, and that in the interest of the child her custody and possession ought to be given appellees, except that on the first, third, and fifth Sundays in each month the child be in the care and custody of appellant. Judgment was rendered upon the finding.
September 28, 1925, being the nineteenth judicial day of the September term, 1925, of the same court, appellant filed in court his verified motion, asking that the judgment heretofore rendered in this cause be modified, and give to this appellant the full and complete custody and control of the child. The motion to modify was submitted upon evidence, and the court thereupon ruled, as shown by the quoted entry first hereinbefore shown. Thereupon, appellant filed his motion for a new trial of his motion to modify the judgment, for the causes that the decision of the court is contrary to law, and that the decision is not sustained by sufficient evidence, which motion was overruled.
The errors assigned are predicated upon the rulings by the court, overruling appellant's motions to modify the judgment, and for a new trial.
The practice and procedure for the application, granting, and issuing of the writ of habeas corpus is as permitted and limited by statute. Sections 1183 to 1207, inclusive, Burns' 1926.
[1] The writ will be granted in favor of a father to enforce the rights and for the protection of his infant child; but the proceedings-practice and procedure-shall, in such a case, conform to the provision of the statute, which is the act concerning proceedings in civil cases. Acts 1881 (Special Session) p. 240, c. 38.
[2] The practice and procedure, recognized as a motion to modify a judgment, is not a practice that is permitted, allowed, or granted by legislative enactment, either by the act concerning proceedings in civil cases (Acts 1881 [Special Session] chapter 38; Warrick v. Spry [1912] 49 Ind. App. 327, 332, 97 N. E. 361), or by any legislative enactment amendatory thereof or supplementary thereto. This practice is established by judicial recognition, and has become an established practice in civil procedure. The relief permitted, however, is limited to the form of the judgment. It is recognized that the amount of relief adjudged is a matter of form. Jarrell v. Brubaker (1898) 150 Ind. 260, 271, 49 N. E. 1050;Warrick v. Spry (1912) 49 Ind. App. 327, 332, 97 N. E. 361.
[3] Practically, a judgment rests upon the verdict, if the trial be to a jury, and upon the judicial finding, if the trial be to the court; and the judgment must conform to the verdict or finding. Sections 602, 603, 615, Burns' 1926.
[4] The relief that may be granted in response to a motion to modify a judgment does not extend to the setting aside of the judgment rendered and substitute therefor a judgment entirely opposite to the first judgment (Warrick v. Spry, supra), unless the motion be to the effect of asking a judgment that will be in accord with the verdict or finding. Berkey, etc., Co. v. Hascall (1890) 123 Ind. 502, 24 N. E. 336, 8 L. R. A. 65.
[6][7] Ordinarily, a motion to modify a judgment must be made when the cause is still in fieri. Cauthorn v. Bierhaus (1909) 44 Ind. App. 362, 88 N. E. 314. A valid judgment in a case for writ of...
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