Stegall v. Stegall

• Decision Date: 14 January 1929
• Docket Number: 27474
• Citation: 119 So. 802,151 Miss. 875
• Court: Mississippi Supreme Court
• Parties: STEGALL (BLAYLOCK) v. STEGALL. [*]

119 So. 802

151 Miss. 875

STEGALL (BLAYLOCK) v. STEGALL. ^[*]

No. 27474

Supreme Court of Mississippi

January 14, 1929

Division A

1. HABEAS CORPUS. Evidence held insufficient to support judgment depriving mother of child's, custody on ground of mother's immoral conduct.

Evidence held insufficient to support judgment depriving mother of custody of her child on ground that mother was woman of immoral conduct.

2. PARENT AND CHILD. On father's death, mother has right to child's custody until there has been abandonment or mother has forfeited right by immoral conduct.

On death father, mother has right to custody of her child as against any other persons who assert claim thereto unless there has been an abandonment of child or mother has forfeited her right by immoral conduct.

3. PARENT AND CHILD. As against mother, paternal grandfather had no right to child until it was shown mother forfeited right by abandonment or immoral conduct.

As against mother, paternal grandfather had no right to child unless and until it was shown in habeas corpus proceedings that mother had forfeited her right to child by abandonment or by immoral conduct.

4. PARENT AND CHILD. It is presumed best interest of child will be preserved by its remaining with parent until recognized exceptions have been established.

It is presumed that best interest of child will be preserved by its remaining with its parents or parent until well-recognized exceptions have been established.

5. HABEAS CORPUS. Proof of bad "reputation," unsupported by act of immorality or misconduct, was insufficient to establish immoral conduct and deprive mother of child's custody.

Proof of bad reputation, unsupported by any act of immorality or misconduct or circumstances tending to show immorality or anchastity, was insufficient to establish immoral conduct on part of mother and to deprive her of custody of her child, "reputation" being what people say of a man, whereas "character" is what he is, and one may have good character while suffering from bad reputation (citing Words and Phrases, Second Series "Reputation [Character]").

6. PAREENT AND CHILD. That judgment for petitioner would, send child from, mother's home to another state should considered, in determining right to child's custody in habeas corpus hearing. That judgment for petitioner would send child away from home of its mother into another state must be taken into consideration in determining right to custody of child in habeas corpus hearing.

HON. C. P. LONG, Judge.

APPEAL from circuit court of Pontotoc county, HON. C. P. LONG, Judge.

Petition for writ of habeas corpus by J. Solomon Stegall against Louise Stegall (Blaylock) for the custody of Lavada Stegall. From the judgment, respondent appeals. Reversed and rendered.

Judgment reversed.

Bratton & Mitchell, for appellant.

Fontaine & Adams, for appellee.

Argued orally by C. A. Bratton, for appellant.

OPINION

MCGOWEN, J.

J. Solomon Stegall, appellee here, filed his petition before the circuit judge of Pontotoc county against Mrs. Louise Stegall (Blaylock), praying for the custody of Lavada Stegall, then alleged to be in the custody of her mother, Louise Stegall (Blaylock), appellant here. The petition alleged that appellant was a woman of loose virtue and chastity, and of bad reputation in the community in which she lived, and was wholly unfitted morally and socially to have the custody and rearing of said minor child. The petition further alleged that Louise Stegall (Blaylock) was under an indictment by the grand jury of the county for the willful murder of her husband, H. W. Stegall, who was the father of her minor child, and son of the appellee, petitioner in the court below. The petition further alleged that petitioner was fitted morally and financially, and was anxious, to have the rearing and education of said minor "under moral, Christian influences." A writ was issued and served, and Mrs. Louise Stegall (Blaylock) came into court, and admitted that she had the custody of the minor child, Lavada Stegall, by virtue of the fact that she was the mother of said child, able financially, and not disqualified morally or otherwise, to have the care and custody of said minor child. It was further alleged that petitioner, J. Solomon Stegall, was a nonresident, and that, if the custody of the child was awarded to him, said child would be carried beyond the jurisdiction of the court. The court below held that Mrs. Louise Stegall (Blaylock), the mother, was unfit, morally, to have the custody of her minor child, and awarded the custody thereof to the grandfather, J. Solomon Stegall, appellee here, requiring said appellee to execute a bond in the sum of two thousand five hundred dollars, conditioned that he would produce the child, at any time he was notified so to do, before the court, and providing for a deposit of cash with the clerk in lieu of a bond. From this judgment in habeas corpus, Mrs. Louise Stegall (Blaylock) prosecutes an appeal here.

The evidence in the case is to the effect that W. H. Stegall and the defendant, appellant here, were respectively the father and mother of said minor child, Lavada Stegall, born in wedlock, and that some time prior to the institution of this proceeding the said H. W. Stegall died; that both parties to this proceeding are amply able financially to take care of and rear the child. The child, at the time of the trial, was about nine years of age, a little girl who attended the public school and Sunday school of the town. Quite a number of witnesses testified that they knew the reputation of Mrs. Louise Stegall (Blaylock), appellant here, in that community, for chastity and virtue, and that it was bad.

On the examination of the first witness, the court asked him to express an opinion as to the effect of permitting the mother to have the custody of her minor child, to which there was objection and exception, and thereafter practically all the witnesses expressed opinions as to the fitness of Mrs. Louise Stegall (Blaylock), the mother, to have the child, and, in the main, the replies were adverse to her. Every witness who testified to her bad reputation also stated that they had never known of her engaging in any conduct indicating unchastity or immorality, and, in the main, testified that, so far as their observation went, they had never seen her conduct herself improperly. Some of the witnesses denominated her reputation as "gossip." Only one witness testified as to having heard of a specific act of immorality as reported to him by one Suddoth, who had told the witness that he saw Mrs. Stegall and Blaylock in the woods. It developed she had secretly married Blaylock. The record does not disclose that Blaylock and Mrs. Louise Stegall were engaged in any immoral act. That seems to have been taken for granted. However, this testimony was hearsay, brought out on cross-examination. There was no single bit of testimony showing, or tending to show, any immoral acts or circumstances showing or tending to show that Mrs. Louise Stegall (Blaylock) was unchaste or immoral. Appellee's case rested solely and alone upon the bad reputation of the mother of the child, the appellant here, in that community. As we have stated, the appellant was under indictment for the murder of her former husband, H. W. Stegall, but the record is absolutely silent as to what disposition was made of that indictment. Mrs. Louise Stegall (Blaylock) did not testify as a witness.

The appellant assigns two reasons for reversal of this case: (1) That the judgment in habeas corpus was a final, conclusive, judgment, and deprived a citizen of this state of the right to remain therein, and transferred the residence of the child to another state; (2) that the evidence in the case was not sufficient to support the finding of the court.

We shall consider only the second of these assignments of error as stated by us, supra, and we are of the opinion that the evidence, as a whole, was insufficient to support the judgment rendered by the court below depriving the mother of the custody of her child.

Under the common law, the father's right, in the absence of abandonment or immoral conduct, was absolute to the custody of his child, and, as the wedded pair were considered a unit the rights of both parts of the unit were to be exercised by the husband alone. In England, a more humane policy has been established by statute, but the common law was recognized, in a modified sense, in early decisions and up to now. The interest of the child is regarded as a factor to be considered in determining the question. Upon the death of the father, it is now well settled that the mother has the right to the custody of her child as against any other person who asserts a claim thereto, unless there has been an abandonment of...