Terry v. Johnson

• Decision Date: 19 April 1905
• Parties: TERRY ET AL. v. JOHNSON.
• Court: Nebraska Supreme Court

73 Neb. 653

103 N.W. 319

TERRY ET AL.

v.JOHNSON.

Supreme Court of Nebraska.

April 19, 1905.

Syllabus by the Court.

1. Evidence examined, and held sufficient to sustain the judgment of the trial court.

2. The right of a parent to the custody of a minor child of tender years is not lightly to be set aside, and it should not be done where unfitness is not affirmatively shown, or a forfeiture of such right clearly established. Norval v. Zinsmaster, 77 N. W. 373, 57 Neb. 159, 73 Am. St. Rep. 500, followed and approved.

Commissioners' Opinion. Error to District Court, Gage County; Kelligar, Judge.

Application by J. A. Johnson for writ of habeas corpus against Seth Terry and others. Judgment for relator, and defendants bring error. Affirmed.E. O. Kretsinger, for plaintiffs in error.

Hazlett & Jack, for defendant in error.

OLDHAM, C.

On February 16, 1904, J. Alfred Johnson filed his petition for a writ of habeas corpus in the district court of Gage county, Neb., to recover possession and custody of Beulah Johnson and Effie Johnson, two minor daughters of the petitioner, alleging that the respondents Laura Terry and Seth Terry, the grandparents of the children, and Menzo W. and Edgar M. Terry, uncles of the children, unlawfully restrained them of their liberty. Respondents, by way of return to the writ, alleged, in substance, their relationship to the children, and that the petitioner was an unfit person for the care and custody of the children; that after the death of the mother of the children the relator, after having taken insufficient care of his daughters Beulah and Effie, brought them to the home of their grandparents in Gage county, Neb., and there left the children, where they remained ever since, without any care or attention on his part, and without his aiding in their support, education, or maintenance. The return concluded with a general denial, and a prayer that Beulah and Effie might be remanded to the care, culture, nurture, and education of their grandparents, and that the writ be discharged. On issues thus joined there was a trial to the court, and a finding that the respondents named in the petition and writ unlawfully deprived Effie Johnson of her liberty, but that as to Beulah Johnson there is no such restraint exercised by any of the respondents. The court further found that the respondents are in all respects suitable and proper people to have the care and custody of either or both of said minors, and that the father, J. Alfred Johnson, is a suitable and proper person to have the care and custody of Effie Johnson, and adjudged, ordered, and decreed that on the second day after the adjournment of the district school at which the minor was attending the respondents Seth Terry and his wife shall deliver Effie Johnson to her father, and that the custody of said Effie Johnson be awarded the relator. There are other orders in the decree which are not complained of in either brief, and therefore need not be set out. To reverse this judgment both relator and respondents bring error to this court. Relator complains of the judgment and finding as to the care and custody of Beulah Johnson, and respondents as to the judgment concerning the custody of Effie Johnson.

From a very voluminous record of the evidence offered at the trial of this cause the following facts material to its proper determination have been gleaned: That the relator, J. Alfred Johnson, is a farmer, residing in Page county, Iowa; that on the 1st day of March, 1887, he was married to Nancy Terry, the mother of the minor children, and resided with her on his farm in Page county until the 24th day of March, 1902, when she departed this life; that at the time of the mother's death she left surviving her the two children in dispute, Beulah Johnson, who will be 17 years of age on the 15th day of April, 1905, and Effie Johnson, who will be 9 years of age on the 4th day of August, 1905, and a son, Everitt Johnson, who is now 12 years of age; that after the death of the mother the children resided for a short time with their father on his farm in Iowa, and on the 17th day of November, 1902, they came on a visit to their grandparents, near Pickerell in Gage county, Neb.; that the son, Everitt, remained a short time with the grandparents, and returned to his father, who subsequently placed him in charge of an aunt residing in Omaha, Neb., for the purpose of enabling him to attend the high school in that city. It appears, notwithstanding the almost reprehensible effort that has been made by counsel for each of the contending claimants of the custody of the children in controversy to show otherwise, that up to and at the time of the death of relator's wife the family of relator and the grandparents entertain and cultivated cordial relations with each other; that after the death of the mother the grandparents invited the children to visit and remain temporarily at their home; that the father visited them after their arrival there, was in correspondence with his children,...