State v. Deaton

• Decision Date: 15 January 1900
• Citation: 54 S.W. 901
• Parties: STATE ex rel. WOOD v. DEATON.
• Court: Texas Supreme Court

54 S.W. 901

STATE ex rel. WOOD v. DEATON.

Supreme Court of Texas.

January 15, 1900.

Error to court of civil appeals of Second supreme judicial district.

Habeas corpus by the state, on relation of Alice Wood, to recover from Daniel Deaton the possession of her minor child. From a judgment of the court of civil appeals (52 S. W. 591) affirming a judgment in favor of respondent, relatrix brings error. Reversed.

Clendenen & Buckaloo, for plaintiff in error. Bullock & Tankerly, for defendant in error.

BROWN, J.

Alice Wood, joined by her husband, brought this action by writ of habeas corpus to recover possession of her minor child by a former husband. The case was tried before the judge without a jury, who filed the following conclusions of fact: "(1) I find: That Alice Wood, the applicant herein, is the mother of Austin Dillard, a minor about six years of age. That when said Austin Dillard was about two years of age his mother, the applicant herein, who was then Alice Dillard, was a widow without a home, and without means of support; went to live with an uncle, who had a large family of small children. That her said uncle was not so situated that he could furnish a home to applicant and her child, Austin Dillard, but could and would furnish a home to applicant if she could and would find a home for the said Austin Dillard in some other family. That the applicant then applied to Daniel Deaton, the respondent herein, whose wife was a distant relation to applicant, to take said child and raise and care for it as if it was his own child. That applicant then promised and assured the respondent that the care and custody of said Austin should continue until said child reached his majority. Applicant promised at the time that she would never take from respondent said child. That, with these assurances, the respondent, after consulting with his wife, agreed with applicant that he and his wife would take said child, and raise and care for it as their own child, and that thereupon respondent and his wife took said child, and have ever since had the care and custody thereof. That it was about four years ago when respondent took said child. (2) I find that, since the said Deaton has had the care and custody of said child, that he and his wife have looked after and cared for said child with as much care as could its natural parents have done; that they have supplied all the wants of said child during this time; that both the respondent and his said wife are very much attached to said child, and appear to be as much attached to the child as if it was their own, and that said child is as much attached to respondent and his wife as if they were his natural parents. (3) That respondent and his wife have been married about 11 years, and never had any children; that respondent and his wife are both good, moral people, and suitable to have the care and custody of said child; that respondent is about 35 years of age, and his wife about 30 years of age; that they are industrious and economical; that, while respondent and his said wife are not possessed of very much property, they have a home of about 100 acres, and personal property sufficient to live comfortably and carry on said farm, and which, with their habits, is sufficient to enable them to properly raise, care for, and educate said child. (4) I find that about eight months ago the applicant herein, the mother of the said Austin Dillard, was married to W. M. Wood; that, from the time the said child was left by applicant with respondent until her marriage, she never sought to regain the care and custody of said child; that during said time she lived with her uncle, as one of his family, and could not have taken her child there to live; that soon after the marriage of applicant she applied to the said Daniel Deaton, respondent herein, for the custody of her said child, which was refused, and this proceeding was commenced to recover the possession and care of said child. (5) That the said W. M. Wood, the present husband of applicant, is a man about 50 years of age, is a man of good moral character, and possessed of a good home, of about 200 acres, and stock and personal property sufficient and ample to work and manage said farm; that said Wood is an industrious and economical man; that applicant herein, Mrs. Alice Wood, is a lady of good moral character and standing, is about 27 or 28 years of age, and that she and her present husband are suitable persons to have the care and custody and raising of the child in controversy; that applicant is very much attached to her said child,—as much so as is ordinarily the case,—and is much grieved at not being able to regain the possession of her said child. (6) That applicant's husband, the said W. M. Wood, is very anxious for his wife, the applicant herein, to have the possession of her said child, and is willing, and will, if his wife should gain the custody and care of said child, do what he can to properly raise and educate said child; that applicant's husband has property sufficient to enable them to properly care for, maintain, and educate said child; that applicant has...