Sturtevant v. State ex rel. Havens

• Decision Date: 29 May 1884
• Citation: 19 N.W. 617,15 Neb. 459
• Parties: SANFORD L. STURTEVANT ET AL., PLAINTIFFS IN ERROR, v. THE STATE OF NEBRASKA, EX REL. ANSON L. HAVENS, DEFENDANT IN ERROR
• Court: Nebraska Supreme Court

19 N.W. 617

15 Neb. 459

SANFORD L. STURTEVANT ET AL., PLAINTIFFS IN ERROR, v. THE STATE OF NEBRASKA, EX REL. ANSON L. HAVENS, DEFENDANT IN ERROR

Supreme Court of Nebraska

May 29, 1884

ERROR to the district court for Merrick county. Tried below before POST, J.

Judgment reversed, and relation dismissed.

W. H Munger, James G. Reeder, and George D. Meiklejohn, for plaintiffs in error.

Harwood Ames & Kelly and Ewing & Reinoehl, for defendant in error.

OPINION

REESE, J.

This cause originated in the district court of Merrick county where the defendant in error sued out a writ of habeas corpus for the purpose of procuring the custody of Ella Nettie Havens, his infant child, who was in the custody of the plaintiffs in error. A trial was had, and the court having stated its findings of fact and conclusions of law, and entered judgment against the plaintiffs in error, the case is brought into this court for review.

The findings of fact are as follows:

"1. The said Ella Nettie Havens, the child named in said writ, is the infant daughter of the relator and the grandchild of the respondents; that said child was born in Central City, Merrick county, Nebraska, on the twenty-sixth day of December, 1882, and is now eight months of age, and that the mother of said child, who was the wife of the relator and the daughter of the respondents, died on the sixth day of January, 1883, her death being caused by blood poisoning occasioned by the birth of said child.

"2. The relator is a man in every way well qualified and able to have and exercise the care and custody of said child; that he is possessed of ample means to raise, educate, and provide for her, and has procured a nurse to assist in the care and education of said child who is in every way well qualified and fitted for said trust.

"3. The respondents are also proper persons to have the care and education of said child; they have a suitable home and are qualified and possessed of ample means and well fitted to nurse, educate, and care for her, and are desirous of raising and educating said child out of their own means, and are now greatly attached to her.

"4. During the last sickness of the relator's wife, and a few days before her death, and when said deceased as well as the relator and respondents expected her death soon to occur, the said wife asked the respondent S. L. Sturtevant to take said child and raise and care for it in all respects as his own; that said respondent agreed so to do, and answered said request in the affirmative; that the relator was present at said conversation and did not assent to or dissent from said proposition, but remained silent.

"5. The day following the funeral of the relator's wife respondents took said child, in good faith, with the knowledge and consent of the relator, from Central City to their home in Nance county, the relator at said time not being prepared to nurse or care for said child in his own house.

"6. That in taking said child to their home respondents claim to have acted upon the said request of the relator's wife.

"7. That said relator visited said child at the home of the respondents three different times between the eighth day of January, 1883, and the fifteenth day of April, 1883, but did not demand said child from respondents at any of said times.

"8. That about the fifteenth day of April, 1883, being in poor health and distressed in mind on account of the death of his wife, with the knowledge and by the advice of respondents said relator went east on a visit and did not return until June 18th, 1883, and a few days thereafter, to-wit, on the nineteenth day of June, 1883, he demanded said child from the respondents, who refused and have ever since refused to deliver her to the relator, but on the contrary have, ever since said date, detained said child contrary to the wish and demand of the relator.

"9. That the value of the respondents' services and money expended in caring for said child since January 8, 1883, is $ 10 per week.

"10. That said relator is twenty-three years old and has no other children and no one depending upon him, and the respondents are both about forty-two years of age and have two daughters now living."

Conclusions of law:

"1. Said child, Ella Nettie Havens, is wrongfully and unlawfully restrained of her liberty by the respondents, S. L. Sturtevant and Hannah Sturtevant.

"2. The relator, Anson L. Havens, is entitled to the care, custody, companionship, and education of said Ella Nettie Havens."

The evidence is not preserved in the transcript, and the only question to be considered by the court is, whether or not the conclusions of law are sustained by the findings of fact.

Were the question of the right of the father the only question to be considered, we should, perhaps, coincide with the conclusions of law as stated by the district court. It is true this legal right was at one time, in the early history of our jurisprudence, fully recognized both by the courts of England and of this country; and it is, in part, made the law of this state by section 6, chapter 34 of the Compiled Statutes, which provides that, "The father of the minor, if living, and in case of his decease, the mother, while she remains unmarried, being themselves respectively competent to transact their own business, and not otherwise unsuitable, shall be entitled to the custody of the person of the minor and to care for his education."

Were this section alone to determine the rights of the parties and were the rule here laid down an inflexible one, it would...