State v. Kirkpatrick
| Decision Date | 24 September 1880 |
| Parties | THE STATE v. KIRKPATRICK |
| Court | Iowa Supreme Court |
Appeal from Judge of Lee Circuit Court.
THIS is a proceeding of habeas corpus to determine the rightful custody and control of Lena L. Kirkpatrick, an infant. The proceeding was instituted before the Hon. JOHN B. DRAYER judge of the Lee Circuit Court, who ordered that the custody of the child be given to the petitioner, Christina H Kirkpatrick. From this order the defendant appeals. Upon request of the defendant the court fixed the amount of the supersedeas bond at $ 1,300. Thereupon the relator filed a motion asking that the child be given to her in accordance with the order made in the case, and be not remanded to the custody of the defendant, upon the ground that a supersedeas is not allowed in cases of habeas corpus, to stay the order of discharge. The court overruled the motion and held that the bond operated to supersede the order, and left the infant in the possession of the defendant. From this ruling the relator appeals. The facts are stated in the opinion.
Upon plaintiff's appeal REVERSED and upon defendant's appeal AFFIRMED.
Craig & Collier, for the relator.
Gillmore & Anderson, for the defendant.
I.
The relator and the defendant were married on the 12th day of February, 1878. This child, Lena L. Kirkpatrick, was born December 12th, 1878, and was, at the time of the institution of this proceeding, fifteen months old and unweaned. The parties resided in Hancock county, Illinois. When they had lived together about a year, the relator became dissatisfied with the defendant on account of an alleged deception as to his financial condition. The defendant, noticing the despondency of his wife, told her if she was not happy with him, and would be happier away from him, he would leave; that her happiness was his greatest desire. She made no reply. About two weeks thereafter she told the defendant she thought the best thing they could do was to separate; that he was deeply in debt, and she did not feel like working to help pay off debts contracted before their marriage.
The result was that they separated on the 27th day of April 1879, although the defendant was willing to remain with his wife and provide for her. Since then the defendant has tried to induce his wife to live with him, but she has refused. At the time of their separation, the infant, Lena L., was three and one-half months old.
After their separation, the defendant, through an attorney, made arrangements for seeing the child at the house of this relator's brother, James Dicker, having given positive assurances that he would not take the child away. Under this arrangement the defendant saw the child at Dicker's four times.
On the 27th of February, being left alone with the child, he carried it away to Keokuk, where he now lives with this mother and sister. On the 16th day of March, this proceeding was instituted. The relator is able to provide for the infant and she is not shown to be an improper person to have its custody. Under the circumstances, the judge did not err in awarding the custody of the child to her mother. The defendant obtained possession of the child stealthily, and in violation of his promise and agreement. He ought not to be allowed to base any legal right upon a fraudulent and illegal act. Aside from this, the child is of such tender years as to need a mother's constant...
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