Tytler v. Tytler

• Decision Date: 19 March 1907
• Citation: 15 Wyo. 319,89 P. 1
• Parties: TYTLER v. TYTLER
• Court: Wyoming Supreme Court

89 P. 1

15 Wyo. 319

TYTLER v. TYTLER

Supreme Court of Wyoming

March 19, 1907

ERROR to the District Court, Sweetwater County, HON. DAVID H CRAIG, Judge.

Habeas corpus, for the custody of minor children. The case and material facts are stated in the opinion.

Reversed.

D. A Reavill and N. E. Corthell, for plaintiff in error.

An affidavit of a witness taken without notice to the opposite party is not admissible on a hearing in habeas corpus. (Rev Stat. 1899, Secs. 5496, 3705.) Whenever the application is sought of the rule that error not prejudicial will not cause a reversal, the absence of prejudice must clearly appear, so as to show beyond doubt that the error could not have been prejudicial. (Deery v. Cray, 5 Wall., 795; Smith v. Shoemaker, 17 Wall., 630; Moores v. Nat Bk., 104 U.S. 625; Gilmer v. Higley, 110 U.S. 47; R. R. v. O'Brien, 119 U.S. 99; Mexia v. Oliver, 148 U.S. 665; R. R. Co. v. O'Reilly, 158 U.S. 334; Lucas v. Brooks, 85 U.S. 436; Masonic Assn. v. Schryock, 73 F. 774; U. S. v. Gentry, 119 F. 70-75; R. R. Co. v. Field, 137 F. 14; Biscuit Co. v. Nolan, 138 F. 6; Terry v. Starch Co., 43 Neb. 866; Winkler v. Foye, 33 N. H., 171; Hoberg v. State, 3 Minn. 262; Myers v. Malcolm, 6 O., 292; Clark v. Vorce, 19 Wend., 232; Bank v. Winfield, 24 Wend., 219; R. R. Co. v. Gregg, 67 N. H., 452.) It does not matter that the case was heard before a judge and not before a jury, and it cannot be assumed that the judge regarded only the legal evidence and disregarded that which was illegal and incompetent. (Est. of James, 124 Cal. 653; Bough v. Geiselman (Tex.), 55 S.W. 615; Carroll v. Deimel, 95 N.Y. 252; Gordon v. McCall (Tex.), 48 S.W. 1111; Brigham v. Gott, 3 N.Y.S. 518; Bank Note Co. v. Ry. Co., N.Y.S. 532; Sparagel v. Delinger, 36 Cal. 278; Torance v. Bank (Kan.), 71 P. 235.)

A very considerable portion of the evidence was taken up with the difference between the husband and wife and the causes which led to their separation. Such evidence is only important to explain the situation of the parties; their mutual relations; and the condition in which they were found. It might be said that what happened ought to have been foreseen by the relator, when at the age of forty-one years, a traveled, experienced, mature man of the world married a girl of eighteen on a very short acquaintance. The incompatible ages, training, experience and tempers of two such persons foretold the trouble, narrated in the wife's testimony as to her husband's conduct, which she at least considered slighting, terrifying, cruel and intolerable. If her testimony is true, it is easy to understand how the wife should have been worried to the verge of insanity, and that the children might possibly have been affected in the same way; and the hopelessness of their domestic situation is made evident when the relator, recalling the experiences of their married life, is presuaded that he at least has made no mistakes, and that if he had his life to live over again he cannot see how he could alter his conduct for the better. But this proceeding is no place for crimination or recrimination nor for the settlement of marital disputes. This case concerns itself only with the question of the welfare of the children, so far as that question may be considered in habeas corpus.

The evidence in that respect, considering the health and education of the children and the necessity for a mother's care, clearly shows that their welfare requires the custody of the mother. It is manifest that the choice of the older child, Muriel, is a wise one. Where, in a case of this character, the interest of a parent is considered, it is regarded in the light of a duty or trust rather than a power or privilege. Again, we have in view the growing equality between the status of wife and husband in relation to their civil rights. (Nugent v. Powell, 4 Wyo. 173; Church Hab. Corp., 441-443; Jones v. Bowman, 13 Wyo. 79; Sturtevant v. State, 15 Neb. 463; Giles v. Giles, 30 Neb. 627; Jones v. Darnall, 103 Ind. 573; Foster v. Alston, 6 How. (Miss.), 406; State v. Baird, 18 N.J. Eq. 194; Ex parte Schumbert, 6 Rich., 334; Matter of Wallenstonecraft, 4 Johns. Ch., 80; Matter of Waldron, 13 id., 418; Matter of McDowle, 8 Johns., 328; Mercein v. People, 25 Wend., 63; In re Barry, 42 F. 113; U. S. v. Greene, 26 Fed. Cas. No. 15256; Corrie v. Corrie, 4 N.W. 213 (Mich.); In re Bort, 25 Kan. 308.) These cases sustain the theory that in freeing the infant from an improper restraint, the court is not bound to deliver him to any particular person; his welfare is the paramount consideration.

Whether the court will regard the child's preference depends upon the reasonableness thereof, and the intelligence manifested--mental capacity and not age being the criterion. (15 Ency. L., 186; Hurd on Hab. Corp., 532; Chunn v. Graham, 43 S.E. 987 (Ga.) If the child be of sufficient age and discretion he may, upon release from the complained of custody, be permitted to go where he chooses. (Rex v. Deleval, 3 Burr., 1434; Rex v. Clarkson, 1 Strange, 444; Rex v. Smith, 2 id., 982.) The application of the rule as to preference is illustrated in the following cases in addition to the above. (In re Poole, 29 Am., 628; Curtis v. Curtis, 5 Gray, 535; Com. v. Hamilton, 6 Mass. 272; Neville v. Read (Ala.), 32 So. 659; People v. Chegary, 18 Wend., 637.) And the children of one family should be kept together if practicable. (Jones v. Bowman, 13 Wyo. 92.) Here, the tender age of the boy renders him peculiarly proper for a mother's care.

John W. Lacey, for defendant in error.

Proceedings in habeas corpus, especially where the custody of infants is involved, are summary in character, and great discretion is given to and exercised by courts and judges in such proceedings. (Church on Hab. Corp., Sec. 177.) The court has power upon this process to inquire fully into the matter, and is not restricted to ordinary modes of trial, but may direct that the children be brought before him, and may examine them privately, and may also avail himself of affidavits or other reasonable and proper sources of evidence. (Dumain v. Gwynne, 92 Mass. 270; Corrie v. Corrie, 42 Mich. 509; Versen v. Ford, 37 Ark. 27; R. S. 1899, Sec. 5496.) Affidavits were admissible in such cases before made so by any statute; so that the statute is merely declaratory of the rule already existing, and does not seek to enlarge or abridge it. (Rex v. Delaval, 3 Burr., 1434; State v. Lyon, 1 N.J.L. 462; 1 Tidd's Pr., 347; In re Ballman et al., 4 Cranch, 75; 1 Burr's Tr., 21.) Hearsay testimony has often been used in such cases. The admission of the affidavits complained of was not prejudicial even if erroneous, since the same facts therein stated were shown by other abundant and uncontradicted testimony. (Hanf. v. Asso'n., 76 Wis. 450; La Duke v. Exeter, 97 Mich. 450; Tollman v. Bowerman, 4 S.D. 197; Ry. Co. v. Tabor, 98 Ky. 503; Ward v. Ry. Co., 97 Iowa 50; N. Y. v. Bank, 126 N.Y. 685; Ry. Co. v. Anderson, 26 Fla. 425; Larson v. Inv. Co., 51 Minn. 141; Galoin v. Palmer, 113 Cal. 46; Silvarer v. Hansen, 77 Cal. 579; Webb v. Barling, 56 F. 203; Greer v. Laws, 56 Ark. 37; White v. Spreckels, 75 Cal. 610; Rix v. Horstmann, 93 Cal. 502; Wilson v. Coleman, 81 Ga. 297; Powell v. Brunner, 86 Ga,. 531; People v. Madison Co., 125 Ill. 9; McKay v. Riley, 135 Ill. 586; Sunnyside Co. v. Reitz (Ind.), 43 N.E. 46; Darnall v. Bennett, 98 Iowa 410; Turnbull v. Maddux, 68 Md. 579; Tel. Co. v. Littlejohn, 72 Miss. 1025; Foster v. Ry. Co., 115 Mo. 165; Johnson v. Colton, 127 Mo. 473; Black v. Hill, 32 Ohio St. 313; Ball v. Stewart, 41 W.Va. 654; Milliken v. Maund, 110 Ala. 332.)

We are ready to admit the general statement that the best interests of the children is the question of paramount importance in such proceedings. It is not the only question. The law looks at rights somewhat in all habeas corpus proceedings, but chiefly to the interests of the child where those interests can be advanced without wrong. But what indication is there in the record here that the court below failed to recognize this principle? We insist that a just consideration of the interests of the children would require the judgment and order entered below, and would not permit any other order. Here Mrs. Tytler is not shown to be able to earn anything whatever. She is living with relatives, but how long that may continue cannot be known. If the children are left with her, so far as is here shown, they will be obliged to depend upon the charity of some relative, which may or may not be given, and failing which they would be utterly without means of support. More than that, as we have seen, Mrs. Tytler has been recreant to her duty. She has failed in those things which wives and mothers deem the most sacred obligations. What security is there in the whim of such a mother for the future of the children as compared with the security in the affection of this father, who has made good his promise; who has stood by his family; who has over and over again entreated his recreant wife to return; who gave up in large measure his employment and spent the days and nights in caring for these children? Moreover, how can the court here say that the lower court was in error in concluding that the best interests of the children required their presence with their father? This court has seen no witness. The court below had before it the children, this father and mother, and all of the other witnesses.

The general rule laid down by counsel for plaintiff in error is too narrow. The statute recognizes a right and corresponding duty on the part of the father. (R. S. 1899, Secs. 4870 4872, 3025, 3026; Nugent v. Powell, 4 Wyo. 173.) The father is, in general, entitled to the custody of his infant child, though not absolute, but depending to some...