State v. Rose
| Decision Date | 31 May 1934 |
| Citation | 71 S.W.2d 685 |
| Parties | STATE ex rel. DAUGHERTY v. ROSE. |
| Court | Tennessee Supreme Court |
Appeal from Tipton County Court; C. B. McClelland, Judge.
Habeas corpus proceeding by the State, on the relation of Lewis Daugherty, against Luther Rose. From a judgment denying relator custody of his child, relator appeals.
Affirmed.
Bringle & Bringle, of Covington, for plaintiff in error.
Sanford & Tipton, of Covington, for defendant in error.
By his appeal the relator seeks a reversal of the judgment of the trial court denying him the custody of his child, Richard Daugherty. The hearing was before the county court of Tipton county, given jurisdiction, concurrent with chancery and circuit courts, to hear and determine habeas corpus cases. Chapter 607, Priv. Acts 1911.
The cause was heard by the court upon the petition, the writ, the return or answer, and oral testimony. The evidence was preserved by a bill of exceptions, an appeal was prayed and granted, and errors complained of are indicated by appellant's assignments of error. Because there was no motion for a new trial indicating errors and affording the trial judge opportunity to correct them, it is insisted by the appellee that there can be no review of alleged errors of law and fact. In Hebert v. Coleman, 3 Tenn. Civ. App. (3 Higgins) 319, upon authority of Railroad Co. v. Johnson, 114 Tenn. 632, 88 S. W. 169, and Weakley County Road Commissioners v. Railroad, 123 Tenn. 257, 130 S. W. 768, the court said a motion for a new trial is necessary to a review in habeas corpus cases. We do not concur in that conclusion as applied to habeas corpus cases. By section 9699 of the Code it is provided that upon return of the writ any issues made shall be tried in a summary way, meaning that the trial shall proceed to a speedy determination, without the formalities attending ordinary legal proceedings and shall be tried by the judge without a jury. See State ex rel. v. Howse, 134 Tenn. 84, 183 S. W. 510 L. R. A. 1916D, 1090, Ann. Cas. 1917C, 1125. When such proceedings involve the custody of children, they are not decided according to the strict legal right of the petitioner but are dependent upon the child's welfare. By the common law, doubtless re-enforced by the proprietary theory of the Roman law, the father was the legal custodian of his child and could reclaim it regardless of the child's welfare or interest, but the common law has yielded to human considerations, so that now cases are not decided according to the strict legal right of the petitioning parent, but according to the best interest of the child. State v. Paine, 4 Humph. 529; State v. Kilvington, 100 Tenn. 227, 45 S. W. 433, 41...
To continue reading
Request your trial
-
Arizona Real Estate Dept. v. Arizona Land Title & Trust Co.
...of Austin, 101 S.W.2d 381 (Tex.Civ.App.1936). See also In re Wells' Estate, 187 Or. 462, 212 P.2d 729 (1949); State ex rel. Daugherty v. Rose, 167 Tenn. 489, 71 S.W.2d 685 (1934); Cox v. Dixie Power Company, 81 Utah 94, 16 P.2d 916 (1932). The legislature did not intend diminution of rights......
-
Johnson v Johnson
...for denying a hearing to appellant. As was said by Mr. Justice Cook, however, speaking for the Supreme Court in State ex rel. Daugherty v. Rose, 167 Tenn. 489, 71 S.W.2d 685, "When such proceedings involve the custody of children, they are not decided according to the strict legal right of ......
-
State v. Monroe, A--112
...40 S.C. 373, 19 S.E. 5, 7 (Sup.Ct.1894); Caneperi v. State, 169 Tenn. 472, 89 S.W.2d 164 (Sup.Ct.1936); State ex rel. Daugherty v. Rose, 167 Tenn. 489, 71 S.W.2d 685 (Sup.Ct.1934); State ex rel. Mynatt v. King, 137 Tenn. 17, 191 S.W. 352 (Sup.Ct.1917); State ex rel. Timothy v. Howse, 134 Te......
-
State ex rel. Sprague v. Bucher
...corpus our Supreme Court seems to have departed from the rule as laid down in Kenner v. Kenner, supra. In State ex rel. Daugherty v. Rose, 167 Tenn. 489, 71 S.W.2d 685, 686, which was a suit on behalf of the relator father, the Court 'When such proceedings (habeas corpus) involve the custod......