State ex rel. Billington v. Asylum

• Decision Date: 05 November 1923
• Docket Number: 26013,25693
• Court: Louisiana Supreme Court
• Parties: STATE ex rel. BILLINGTON v. SACRED HEART ORPHAN ASYLUM. EMANCIPATION OF MARTOLARA

98 So. 406

154 La. 883

STATE ex rel. BILLINGTON v. SACRED HEART ORPHAN ASYLUM. EMANCIPATION OF MARTOLARA

Nos. 25693, 26013

Supreme Court of Louisiana

November 5, 1923

Rehearing Denied by Division B December 10, 1923

Appeal from Civil District Court, Parish of Orleans; Percy Saint (in No. 25693) and Porter Parker (in No. 26013), Judges.

Separate proceedings by the State, on the relation of Mrs. Marguerite Ferrara Billington, for a writ of habeas corpus to be directed to the Sacred Heart Orphan Asylum, and by Mrs Marguerite Ferrara Billington to annul a judgment of emancipation of Annie Martolara. Judgment for relatrix in the first-mentioned proceeding and for defendant in the last-mentioned proceeding; defendant appealing in the first proceeding and plaintiff in the second. Judgment in the first-mentioned proceeding affirmed and in the last-mentioned proceeding reversed, and cause remanded.

In No 25693:

Alfred J. Bonomo, Michel Provosty, and U. Marinoni, Jr., all of New Orleans, for appellant.

Louis R. Hoover, of New Orleans, for appellee.

In No 26013:

Louis R. Hoover, of New Orleans, for appellant.

U. Marinoni, Jr., and Michel Provosty, both of New Orleans, for appellee.

ST. PAUL, J. DAWKINS, LAND, LECHE, JJ.

OPINION

ST. PAUL, J.

These two cases were argued, briefed, and submitted as one; but the issues are somewhat distinct, the first-named case being an application for a habeas corpus, and the last-named being an action to set aside a judgment of emancipation.

Accordingly we will first consider the habeas corpus proceeding, irrespective of the emancipation feature, and afterwards consider this last phase. The connection between the two cases will appear as we proceed.

I.

In the habeas corpus proceedings, the relatrix alleges (and shows) that she is the divorced wife (now remarried) of Peter Martolara, that Annie Martolara, a minor, is the issue of her marriage with Martolara, and that the judgment of divorce granted to her (the relatrix) the custody and control of sad minor child. She further alleges that said orphan asylum detains said minor against the will and consent of relatrix.

The answer of the asylum to the merits is that said minor is not detained in any way --

"but that said child was placed in said asylum when an infant about two years of age, by her father, whom relator had abandoned. * * * That the young girl is in the asylum, because her father wishes her to remain in the care of the sisters, and because the said girl wishes to remain in said asylum."

The evidence in the record does not show that the relatrix abandoned her husband. There is evidence showing that relatrix and her husband separated voluntarily many years ago; but the reasons for this separation do not appear from the record. In other respects the facts are as stated in the return.

As between husband and wife, the decree in the divorce proceedings, awarding the wife the custody and control of the minor child, is of course conclusive, though doubtless subject to modification on a proper showing. And therefore, as long as that decree stands unmodified, it belongs to her and not him to dispose of the person of the minor. His wishes in the matter are therefore of no consequence, since, if they are to prevail, it would be he, and not she, who would have the effective custody and control of said child, and the decree awarding her such custody and control would be mere empty words.

And in Prieto v. St. Alphonsus Convent, 52 La.Ann. 631, 27 So. 153, 47 L.R.A. 656, it was held that a minor, unless emancipated, is "without legal capacity to leave the parental domicile permanently, and select for himself another domicile or residence, without the consent of his parents."

So that the wishes of the minor are also of no consequence.

The writ of habeas corpus was therefore properly awarded herein, unless there be some other defense thereto, better than the foregoing.

The point was raised in the court below, after judgment for relatrix, and on application for a new trial, that habeas corpus was not the proper remedy for obtaining the custody of children.

This might be disposed of by simply stating that the plea came too late. As it related only to the form of proceeding, it should have been urged before issue joined.

However the plea is wholly without merit. It was elaborately considered in the Prieto Case, supra, and determined adversely to the claims of the respondent. It was there held that to afford shelter to a minor under such circumstances was, in a legal sense, a detention of such minor, and

"It is the province of the writ of habeas corpus to release such minor from such restraint and restore her to the rightful custody of her parents."

And the court cited abundant authority therefor. It was shown that from the very year the state was admitted to the Union (1812) this court had entertained such application, citing Bermudez v. Bermudez, 2 Mart 180; and that it had been held in Hyde v. Jenkins, 6 La. 427, 437, that

"A tutor deprived of the custody of his ward, or a husband of the company of his wife, may seek a restoration to their rights by recourse to a writ of habeas corpus."

The precise point was considered for the last time in Courtin's Case, 150 La. 624, 91 So. 67, and the ruling in the Prieto Case was affirmed.

And the cases in which this court has entertained such writs are so numerous as to defy citation. See especially, however, State v. Michel, 105 La. 741, 30 So. 122, 54 L.R.A. 927; Ex parte Ryan, 126 La. 449, 52 So. 573; State v. Tebault, 147 La. 889, 86 So. 320.

State v. Browne, 148 La. 395, 87 So. 21, decides nothing more than that, prior to the Constitution of 1921, the civil district court for the parish of Orleans had no authority to issue any writ of habeas corpus. This has since been remedied (Const. 1921, art. 7, Sec. 2, pages 35, 36).

This court has therefore decided directly three times that the writ of habeas corpus was a proper remedy for obtaining the custody of a minor child by the person legally entitled thereto (6 La. 427, 437; 52 La.Ann. 631, 150 La. 624); and has allowed the writ in innumerable cases, from the first organization of the state to the present day (2 Mart 181, to 150 La. 624, 91 So. 67).

And the rule is the same in every state and under every government to which the writ of habeas corpus is known.

In 29 Corpus Juris, p. 108 (verbo "Habeas Corpus," § 101), we find the following:

"The writ of habeas corpus was limited originally to cases of restraint under color or claim of law. It has, however, been extended to, and generally made use of, in controversies touching the custody of infants. * * *" (Italics ours.)

And in support thereof are collected numerous citations, Federal, English and Canadian, as well as from every state in the Union (beginning with Alabama, Arizona, and Arkansas, and ending with Washington, West Virginia, Wisconsin, and Wyoming).

Opposed to these, we find but one citation, to wit, an obiter dictum in State v. Bertucci, 148 La. 403, 407, 87 So. 23.

We are therefore in hopes (perhaps too sanguine) that in view of these authorities this question may now be considered finally settled.

II.

We now come to the only other ground for denying the writ of habeas corpus, to wit, that, since the judgment in this case the minor, Annie Martolara, has been duly emancipated and become the mistress of her own conduct, and that hence this action necessarily abates.

There are two several emancipations relied upon -- one executed by notarial act by the father alone, the other by judgment of the district court rendered with the consent of the father alone. To neither of these has the mother (relatrix) consented at any time, in writing or otherwise.

Now in this state we have emancipation by marriage, which produces different effects according to the age of the person thus emancipated, and is effective regardless of the consent of the parents; but the minor who marries without the consent of his parents may be disinherited by them. Civil Code, art. 1621, No. 10.

We are not presently concerned with this species of emancipation, but we mention the liability of a child to be disinherited, if he marry without the consent of his parents, merely to direct attention to the fact that our law does not favor the displacing of parental authority without the consent of the parents.

Besides this species of emancipation, there are two others -- one conferring only the power of administration, the other relieving the minor of all disabilities as effectively as if he had reached majority.

As to the first, the Civil Code provides:

"Art. 366. The minor, although not married, may be emancipated by his father, or if he has no father, by his mother, when he shall have arrived at the full age of fifteen years. This emancipation takes place by the declaration to that effect of the father or mother, before a notary public in presence of two witnesses."

As to the second, the Code provides:

"Art. 385. Whenever a minor, over the age of 18 years, shall desire to be relieved from the time prescribed by law for attaining the age of majority, he shall present a petition to the judge having jurisdiction, wherein he shall set forth the reasons therefor and also the amount of his estate. This petition shall be accompanied by the written assent of the tutor, if there be one, otherwise by that of a special tutor appointed for that purpose. * * *"

Article 386 provides for the manner and form of the decree of emancipation.

"Art. 387. If any minor, desiring to avail himself of the provisions of the two preceding articles, has a father or mother living, the consent of the father or mother, or both, shall be necessary to authorize the judge to...