Schell v. Schell
| Decision Date | 17 November 1927 |
| Docket Number | 25,136 |
| Parties | Schell v. Schell et ux |
| Court | Indiana Supreme Court |
Rehearing Denied February 3, 1928.
1. HABEAS CORPUS.---Error cannot be predicated on return to writ after filing of amended return.---The filing of an amended return to the writ of habeas corpus took the original return and all rulings relating thereto out of the case, and no error could be predicated on the court's ruling on the original return. p. 645.
2. APPEAL.---Insufficiency of evidence to sustain finding not presented for review.---No question as to the sufficiency of the evidence to sustain the court's finding is presented on appeal where appellant's brief does not contain a condensed recital of the evidence in narrative form as required by cl. 5, Rule 22 of the Supreme and Appellate Courts. p. 646.
3. APPEAL.---Rulings of trial court presumed correct unless appellant's brief shows otherwise.---Except so far as the record on appeal affirmatively shows that error was committed, the appellate tribunal will presume that all rulings of the trial court were correct. p. 646.
From Madison Circuit Court; William A. Kittinger, Judge.
Habeas corpus proceeding by John Schell against Isaac Schell and wife for the possession of plaintiff's infant child Jennie E. Schell. From a judgment for defendants, the plaintiff appeals.
Affirmed.
E. H Graves, for appellant.
Ellison & Neff, for appellees.
OPINION
This action was brought by the appellant, John Schell, father of Jennie E. Schell, against the appellees, who are the grandparents of the child, for the custody of said child. The appellees, Isaac Schell and Nancy Schell, are the parents of the deceased mother of said child. The grandparents at the time of this action were each about fifty-seven years old. The mother died at the time of the birth of the child. The child was delivered by the Caesarian operation. The grandparents took the child at the time of its birth and have had the custody of it since that time. At the time of this action, the child was about twenty-nine months old, in feeble health and living with said grandparents. The father of the child had remarried and brought this action for possession of the child.
The finding of the trial court was that the child, Jennie E. Schell, is not now unlawfully deprived of her liberty. The court further finds that the appellant is not entitled to the custody of said child in any way and that the plaintiff is not a fit person to have the care and custody of the child at this time, but the court further finds that the defendants and each of them are fit and proper persons, in every way, to have the care and custody and control of said child, and that it is for the best interests of said child, in all particulars, for it to remain with the defendants, where it now is, and to be cared for and nurtured by said defendants. That the plaintiff in this case is entitled to take nothing, and the defendants should in all things recover. Judgment was rendered pursuant to this finding in favor of the defendants.
The appellant made a motion for a new trial, which was overruled, and appellant excepted to such ruling. The reasons assigned for a new trial are: The decision of the court is not supported by sufficient evidence and the decision of the court is contrary to law.
The appellant claims that the court erred in overruling the plaintiff's exception to the return of defendants to the writ of habeas corpus, for the following reasons: That it was error in the trial court to permit the defendants to amend their return and to overrule the exceptions thereto.
It appears that the return to the writ of habeas corpus was filed on October 21, 1925, and that on the same day, the plaintiff filed his exceptions to the return and answer of the defendants. It appears that afterward, on November 4 1925, the defendants filed their petition to file an amended return and the court granted said petition. It does not appear that the plaintiff objected to the filing of the said petition and it appears that no exceptions were taken to the rulings of the court. The amended return was then filed and is set out in full in the record. No objections or exceptions were made to said filing. When the appellee filed an amended return to the writ, the original return and all rulings relating to the same went out of the case, therefore no error can be predicated on the court's ruling on said original return. Standard Oil Co. v. Henry (1922), 192 Ind. 171, 133 N.E. 742; Aetna Ins. Co. v. Indiana Nat....
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