Schiltz v. Roenitz

• Decision Date: 26 September 1893
• Citation: 86 Wis. 31,56 N.W. 194
• Parties: SCHILTZ v. ROENITZ.
• Court: Wisconsin Supreme Court

86 Wis. 31

56 N.W. 194

SCHILTZ

v.ROENITZ.

Supreme Court of Wisconsin.

Sept. 26, 1893.

Appeal from circuit court, Outagamie county; John Goodland, Judge.

Action by John Schiltz against Charles H. Roenitz for the value of the services of a minor child. Judgment for defendant. Plaintiff appeals. Reversed.

The other facts fully appear in the following statement by PINNEY, J.:

Action by the plaintiff for the recovery of damages for deing deprived by the defendant of the services of his minor daughter since the 28th of December, 1887, and for alienating and estranging her affections from the plaintiff, her father. The complaint has annexed to it, as an exhibit and part thereof, certain alleged proceedings for the adoption by the said defendant and Rosa, his wife, of the plaintiff's daughter Mary, representing their desire to adopt her, and alleging that she was a child of John Schiltz and Christiana, his wife, who is deceased; that the said Mary was then 13 years of age, and that John Schiltz, the plaintiff, abandoned her and his other children in 1884, and had not since been heard from; that the petitioners are of sufficient ability to bring up said child, and furnish her suitable culture and education; and that she has no general guardian. The petition prayed an order of adoption from the court, and that from and after the date thereof such child be deemed, to all legal intents and purposes, the child of the petitioners, and was verified. Indorsed on the petition was the consent of Jacob Imig to such adoption, reciting that he had been duly appointed by the county court of Sheboygan county to consent thereto. Annexed to the complaint is an order which recites, in substance, the allegations of the petition, that the said Mary has no guardian, and appointing said Imig for the purpose of appearing for said child and consenting to said adoption, if he shall deem it best; also, an order reciting the substance of the petition, and the appointment of Imig, and his consent, under section 4022, c. 173, Rev. St., and that the court being satisfied of the identity and relation of the persons, and that said petitioners have sufficient ability to bring up and furnish suitable culture and education for said child, having reference to the degree and condition of its parents, and that it is proper for such adoption to take effect, it was thereupon ordered that from and after the date thereof said Mary Schiltz should be, to all legal intents and purposes, the child of the petitioners, Charles H. Roenitz and Rosa, his wife. It was alleged that the defendant had retained said plaintiff's child in his possession up to the present time, against the will of the plaintiff; that the allegation of abandonment was untrue; that he had attempted to regain possession and control of his daughter, and the defendant had retained her, threatening the plaintiff with personal violence if he attempted to get possession of his child. The proceedings in the county court are alleged as the ground of the defendant's detention of the daughter. There is nothing on the face of the proceedings, or connected therewith, to show that any notice thereof was ever given to the plaintiff, or that he ever consented to the order of adoption. The defendant answered the complaint, and at the trial objected to any evidence under it, on the ground that it did not state facts sufficient to constitute a cause of action. The court sustained the objection, and dismissed the plaintiff's complaint, and from this judgment the plaintiff appealed.G. W. Foster, for appellant.

Simon Gillen, for respondent.

PINNEY, J., (after stating the facts).

It is not disputed but that a father has dominion, by right, over his minor children, nor that such primary right may be lost or forfeited by him by abandonment, neglect, or abuse. The right of the parent is not absolute and unconditional. The necessities and well-being of the social state enter so largely into the question of the dominion and control of the parent over his child that, in the interest of society and the physical and moral necessities of the child, the entire subject is one of appropriate legislation, providing in what manner the parent may be deprived or restrained in the exercise of his natural rights by reason of neglect, abandonment, or abuse. All this is well established by approved text writers and numerous adjudications. Schouler, Dom. Rel. § 248; Milwaukee Industrial School v. Supervisors of Milwaukee Co., 40 Wis. 328;Sheers v. Stein, 75 Wis. 44, 43 N. W. Rep. 728; Petition of Ferrier, 103 Ill. 367;House of Refuge v. Ryan, 37 Ohio St. 197;Farnham v. Pierce, 141 Mass. 203, 6 N. E. Rep. 830; Clark v. Bayer, 32 Ohio St. 299. The principle stated in these cases finds expression in the provision of our statute (section 3964) that “the father of the minor, if living, and in case of his death, the mother, while she remains unmarried, being themselves respectively competent to transact their own business, and not otherwise unsuitable, shall be entitled to the care and custody of the person of the minor.” The state intervenes only upon the destitution and necessity of the child, and in all cases of controverted right to its custody its welfare is a matter of primary consideration. Questions in relation to the care and custody of minor children, by reason of their being neglected, or for other cause, whereby they are committed to industrial schools, or houses of refuge, or other like institutions, where the interference with parental custody is temporary merely, and which do not change the status, or adjudicate finally upon the right of the parent to its custody, are materially different from the proceeding under consideration. In the case of Milwaukee Industrial School v. Supervisors of Milwaukee Co., 40 Wis. 339, it was said that the statute in that case “operates, so to speak, upon the child in...