The Board of Children's Guardians of Marion County v. Shutter

• Decision Date: 15 June 1893
• Docket Number: 16,974
• Parties: The Board of Children's Guardians of Marion County v. Shutter
• Court: Indiana Supreme Court

34 N.E. 665

139 Ind. 268

The Board of Children's Guardians of Marion County v. Shutter

No. 16,974

Supreme Court of Indiana

June 15, 1893

Petition for Rehearing Overruled Nov. 15, 1894.

From the Marion Superior Court.

The judgment is reversed and the cause remanded, with instructions to overrule the exceptions to the amended return.

W. P Fishback, B. K. Elliott, W. F. Elliott, S. P. Davis, C. L Hare and C. Martindale, for appellant.

J. F McCray and S. Ashby, for appellee.

OPINION

McCabe, J.

The appellee applied to the court below for a writ of habeas corpus against appellant, charging it with unlawfully restraining her of her liberty; an exception to the amended return to the writ by appellant was taken by appellee, and sustained by the trial court, to which ruling appellant excepted, and failing to further amend its return, and electing to stand thereon without further pleading or action, it was adjudged that the alleged holding and detention of the appellee was without authority of law, etc.

The return--after reciting in detail the appointment of all the members of the Board of Children's Guardians by the circuit court of Marion county from the organization of the board to that time, giving the names of all the present members as well as their predecessors--reads as follows: "That acting as such corporation as aforesaid, of which the parties whose names have been hereinbefore set forth are members, said corporation on the first day of March, 1893, in the January term for the year 1893, of the Marion Circuit Court, filed in said court a petition as follows:

In the Matter of Gertrude Shutter,

Infant. Petition for Custody.

To the Honorable Judge of the Marion Circuit Court:

The Board of Children's Guardians of Marion county, a corporation existing under, and acting by virtue of, the laws of Indiana, respectfully petition the court, and say that Gertrude Shutter is a female child of 13 years of age; that the father of said child is Shade A. Shutter, residing at Jeffersonville, Indiana; that the mother of said child is Bell Shutter, residing at 249 1/2 W. South street, within Marion county, Indiana; that the child is in the actual custody and control of her mother, the said Bell Shutter; that the father of said child has abandoned his family; that said mother is in constant habits of drunkenness, and low and gross debauchery; that said child is neglected, and kept in associations which tend to her corruption and contamination. Wherefore the Board of Children's Guardians of Marion county petitions the court to order that said child be committed to the custody and control of said board.

(Signed) The Board of Children's Guardians.

By Nathaniel A. Hide, President.

C. L. Hare, Attorney for Petitioner.

This petition was duly verified.

The court having inspected the petition ordered that the writ for the custody of said child be issued thereon, and that the same be served upon Bell Shutter, the mother of said child, in Indianapolis, and Shade A. Shutter, at Jeffersonville, Clark county, Indiana, and directed that said minor child should be kept in the keeping of said board until the final order of the court upon said petition. Said writs were issued thereon, and the said Gertrude Shutter was taken by the sheriff of Marion county on said writ, and delivered to the defendant, said corporation. Said petition was set for hearing on the 11th day of March, 1893, and notice thereof was ordered to be given to said Bell Shutter and Shade A. Shutter, the parents of said child, and on the 4th day of March, 1893, by agreement of both parties, said Marion Circuit Court proceeded to hear and determine said cause on said petition; and having heard the evidence, and being sufficiently advised, said court entered in said cause the following order and decree, to wit: And afterwards to wit:

On Saturday, the 4th day of March, 1893, the same being the fifty-fourth judicial day of the January term. 1893, of the Marion Circuit Court, the following additional proceedings were had in this cause: "Comes the Board of Children's Guardians of Marion county, Ind., by C. L. Hare, its attorney, and comes also Shade A. Shutter, in person, and by J. F. McCray, his attorney, and defendant Bell Shutter, in person, comes also, and now, by agreement of all parties, notwithstanding the return day of the writ issued herein, this cause is submitted to the court for trial, finding, and determination; and the evidence and argument of counsel having been heard, and the court having seen and inspected the petition herein, and being fully advised, finds that the allegations of said petition should be sustained; that said Gertrude Shutter is a female child of the age of 13 years, and that she should be given to the custody of the Board of Children's Guardians. It is therefore considered and adjudged by the court that the said Gertrude Shutter be, and she is hereby given to the custody of the Board of Children's Guardians of Marion county, Ind."

The return further shows that there was a motion for a new trial of said cause overruled, and a motion to modify the order was also overruled.

The return further shows this judgment of said circuit court remains in full force, unmodified, unreversed and not appealed from.

If that judgment is valid, the return was good, and the superior court in general term erred in affirming the judgment in special term adjudging the return insufficient.

It is earnestly insisted by appellee that the judgment of the circuit court in awarding her custody and control to appellant was void, because, it is asserted, the act approved March 9, 1889 (Acts 1889, p. 261), as amended by the act approved March 9, 1891 (Acts 1891, p. 365), as amended by the act approved March 3, 1893 (Acts 1893, p. 282), under which the circuit court proceeded, is in conflict with several provisions of the State constitution.

It is maintained with earnestness and ability, for appellee, that "All judgments had and rendered under a law that is unconstitutional, are void, and are as if no proceeding or judgment had been had or rendered."

Conceding that proposition, and yet counsel's contention is not established if the law which gives the sole power or jurisdiction to the court to render the judgment is unconstitutional and void; and if, without such a law in force, the court would have no power to render the judgment in question, then, the law being void, the judgment depending wholly on such void law would also be void. Where, however, the court has jurisdiction to adjudicate upon the subject, derived from other sources than the supposed void statute, even though it may attempt to follow that statute, it does not necessarily follow that its judgment is void.

A judgment founded on a statutory bond, depending for its validity wholly on the statute, which is unconstitutional and void, is not void, and can not be collaterally impeached because the statute is unconstitutional and void. Cassel v. Scott, 17 Ind. 514.

If the circuit court had jurisdiction over the subject and the parties, though it committed the greatest irregularities and errors, its judgment can not be collaterally impeached therefor, as this proceeding attempted to do. Davidson...