Schleuter v. Canatsy

• Decision Date: 05 October 1897
• Docket Number: 18,150
• Citation: 47 N.E. 825,148 Ind. 384
• Parties: Schleuter v. Canatsy et al
• Court: Indiana Supreme Court

47 N.E. 825

148 Ind. 384

Schleuter v. Canatsy et al

No. 18,150

Supreme Court of Indiana

October 5, 1897

From the Marion Circuit Court.

Affirmed.

Elmer E. Stevenson, for appellant.

G. W Stubbs and C. E. Averill, for appellees.

OPINION

Monks, J.

This was a habeas corpus proceeding brought by appellee to obtain the custody of a child under four years of age from appellant, the father of such child. The proceedings resulted in a judgment awarding the custody of the child to appellee.

Appellant has assigned errors: First, the court erred in overruling his motion to quash the writ of habeas corpus; second, the court erred in overruling his motion for a new trial; third, the court erred in its conclusions of law.

We cannot determine the question presented by the second assignment of error, for the reason that the same depends upon the evidence which is not in the record. Besides, such assignment of error is waived by the failure of appellant to argue the same in his brief. The third error presents no question, for the reason that the court did not make a special finding and state conclusions of law thereon, under the code. Moreover, section 560, Burns' R. S. 1894 (551, R. S. 1881), providing that the court shall, at the request of either party, make a special finding of the facts and state the conclusions of law thereon, does not apply to habeas corpus proceedings. McGlennan v. Margowski, 90 Ind. 150, 154; Garner v. Gordon, 41 Ind. 92; section 1132, Burns' R. S. 1894 (1118, R. S. 1881).

The trial court overruled appellant's motion to quash the writ of habeas corpus. Such motion tests the sufficiency of the application for the writ. Willis v. Bayles, 105 Ind. 363, 364, 5 N.E. 8; Milligan v. State, ex rel., 97 Ind. 355; McGlennan v. Margowski, supra, p. 153.

It is alleged in the application "that appellees are husband and wife, living together and residing in the city of Indianapolis; that appellant was the husband of Flora E. Schleuter, who was a sister of the appellee, Mary Canatsy; that said Flora died November 27, 1892, leaving an infant daughter, aged, on said date, one day, to whom was given the name of Flora E. J. Schleuter; that after the birth of said child, and at a time when said Flora E. Schleuter knew that she had but a few hours to live, the said Flora E Schleuter and appellant, her husband, gave said child to appellees to rear and care for as their own; that appellees then and there accepted said trust, and promised and agreed with the mother, said Flora E. Schleuter, and appellant, father of said child, that they would faithfully care for and rear said infant, in all respects as if she were their own child, and that they, from the 27th day of November, 1892, have faithfully discharged their duties towards said child in all respects as if she had been their own, and have become greatly attached to said child, and love it as if it were their own, and said child has become greatly attached to appellees and loves them as her parents; that from that day until the 4th day of October, 1896, appellees have maintained, clothed and cared for said child in health and in sickness, wholly without aid or assistance from appellant, during which time appellant wholly abandoned the care, custody and keeping of said child to appellees; that appellees are ready, able and willing to adopt said child as their heir, according to the laws of the State of Indiana, and desire so to do; that on October 4, 1896, appellant forcibly seized the person and body of said child, Flora E. J. Schleuter, without the knowledge or consent of appellees, and now forcibly restrains her of her liberty and deprives appellees of the possession of said child by forcibly confining her in his, said appellant's, dwelling house in the city of Indianapolis; that said appellant is not a fit person to have the care and custody of said child; that he is a person of immoral character; that since the death of his wife, Flora E. Schleuter, he has associated and consorted with prostitutes and persons of bad repute for chastity and virtue, for some of which he has been arrested, and on pleas of guilty has been fined in the police court of Indianapolis; that the surroundings and companionship to which said child will be subjected will not be, and are not such as will be conducive to the welfare and best interest of said child, in this, towit: that said appellant has taken said child to his home in said city of...