Thornton v. Devaney

• Decision Date: 16 November 1944
• Docket Number: 28001.
• Citation: 57 N.E.2d 579,223 Ind. 47
• Parties: THORNTON et al. v. DEVANEY et al.
• Court: Indiana Supreme Court

57 N.E.2d 579

223 Ind. 47

THORNTON et al. v. DEVANEY et al.

No. 28001.

Supreme Court of Indiana

November 16, 1944

Appeal from Superior Court, Lake County; Fred A. Egan Judge.

Stiles & Bayor, of Gary, for appellants.

Fagan & Daugherty, of Gary, for appellees.

SHAKE Chief Justice.

The appellees prevailed in a habeas corpus proceeding instituted by them for the possession of their seven-year old son. The propositions presented and relied upon by the appellants for the reversal of the judgment are: (1) That the trial court ought to have entered a judgment on the pleadings in favor of the appellants; (2) that the decision is not sustained by sufficient evidence; and (3) that a new trial should have been granted on account of newly discovered evidence.

The appellants say that the appellees' petition for a writ of habeas corpus served its purpose when the writ was issued that issues of fact were tendered by appellants' return and that these allegations were never denied and should have been treated as conclusive. There was no appropriate and timely motion for judgment on the pleadings and the cause was submitted to the court for trial on the merits. It is the settled practice of this State that a plaintiff who submits to trial without objection before an issue is formed waives an answer and on appeal the complaint will be deemed to have been controverted. Parscouta v. State ex rel., 1905 165 Ind. 484, 75 N.E. 970, 1 Watson's Works Practice, § 634. This rule is applicable to a habeas corpus proceeding. 29 C.J., pp. 165, 166, Habeas Corpus, § 189, 39 C.J.S., Habeas Corpus, § 99. The appellants' first proposition therefore presents no reversible error.

There was evidence that the appellees were the parents of five children. The mother was in poor health and the appellants took the child with which we are here concerned when it was less than a year and a half old and kept it until it was seven. The appellants became greatly attached to the child and the appellees have the normal affection of parents. Both families are of good moral character and habits; both have good homes and adequate financial resources to rear the child. It would not be mistreated or placed in an unfavorable environment in either home. The appellants have no children but the appellees have four others. The parties were before the trial court and it was concluded that the interests of the child would be better served by returning...