Watts v. Smylie

• Decision Date: 19 November 1917
• Docket Number: 19535
• Citation: 76 So. 684,116 Miss. 12
• Court: Mississippi Supreme Court
• Parties: WATTS v. SMYLIE. ET AL

76 So. 684

116 Miss. 12

WATTS v. SMYLIE. ET AL

No. 19535

Supreme Court of Mississippi

November 19, 1917

Division A

APPEAL from the chancery court of Amite county, HON. R. W. CUTRER Chancellor.

Proceedings in habeas corpus by Mrs. R. H. Watts against Mack Smylie and another. From a decree for defendants, plaintiff appeals.

The facts are fully stated in the opinion of the court.

Reversed.

F. D Hewitt, for appellant.

It is the law, and has been in the state of Mississippi through all the ages, that the parents, if they be worthy, are entitled to have the custody and possession of their children. In fact the evidence is so strong in favor of the appellant, and it seems the law is so plain that the decision of the court was most arbitrary and exceeded the bounds of sounds discretion. It seems that under the facts of this case that it is so plain that the decision of the court should be reversed that an extended argument would be unnecessary.

The true rule in cases of this kind is stated by WHITFIELD, C J., in Glidwell v. Morris, 42 So. 537. The interest of the child is the controlling factor and the custody is determined solely by this question. In the case referred to Glidwell brought habeas corpus proceedings for the possession of his boy about two or three years old against the child's grandmother, Mrs. Jane Morris. The lower court awarded the custody of the child to its grandmother and the supreme court reversed that decision and gave the custody of the child to its father.

It is the law and has been that the father and mother or either of them, if they be living and suitable, should have the custody and possession of their children. Moore v. Christian, 56 Miss. 408, 31 American Report, 375.

In the instant case the testimony shows that the mother is in every way qualified, mentally, morally, spiritually and financially to rear and educate her boy; although it is not denied that the child, John A. Smylie, Jr., is at present in a good home.

The law applicable to case of this kind is very well discussed and analyzed in Hibbette et al. v. Baines, 29 So. 80. Citing case of Wier v. Marley, 199 Mo. 494, and 6 L. R. A. 672, and a great many other authorities cited in this case. Section 2409 of the Code of 1906, says: "The guardian of a minor whose father or mother is living and is a suitable person to have the custody of the minor shall not be entitled as against the parent to the custody of the ward."

In the present case the guardian of the estate was not given the custody of the ward but the boy was given by his father before his death to the aunts and uncles and the mother was deprived of her baby boy and had been for three years.

The minor was taken from his mother between the age of three and four years and was taken against her wishes and placed with relatives, who being good people in every respect, knew nothing about the love of children and had no experience in raising children and teaching them the correct ideas of life.

The child has been deprived of the love and devotion of his father and mother, he has been deprived of the association of his brother, and is without a playmate, so necessary and essential to the welfare and well-being of a boy.

If there be no dispute of the facts when the question of the custody of a child is involved and the mother is one party and a collateral relative the other, as in this case, there certainly is no dispute of the law that the mother is entitled to and has the natural and legal right to the custody of her child. Hibbette v. Baines, 29 So. 80.

We respectfully submit that the case should be reversed and judgment entered here awarding the appellant the custody of her child.

C. T. Gordon and R. S. Stewart, for appellee.

It will appear by reading the latter petition the one upon which this appeal is taken, that the petitioner ask for a writ of habeas corpus, and did not file a bill of review or for review, but filed the petition de novo, and asked a vacation of the former decrees rendered in this matter; one while Mrs. Watts was the widow Smylie, and the other after she had married Mr. Watts, and in both of which decrees she was denied the custody of the minor, and in the second decree the bill was dismissed outright, and no appeal was taken from the same but appellant instead filed another original bill.

We submit first as a proposition of law, that the decree of the chancellor is right upon the pleadings, and any other decree, or a decree amending, vacating or avoiding the former decrees, could not have been granted, for there is no way to collaterally attack a decree; no motion was made or entered asking the cause to be remanded to the docket for further proof but simply a straight out and out bill filed to go over and rehash the same case that at least once had been heard.

The matters charged in this latter petition had twice been before the court, and in the first instance a temporary decree was granted, and in a petition to reopen this, a final decree was granted, dismissing the bill and taxing the complainant or petitioner with the cost but not satisfied, and directly in the face of this decree, another petition is filed, over the same matter, alleging substantially the same facts, and predicated upon the same grounds of action.

And we submit that the chancellor was correct in denying the relief therein prayed for, and in dismissing this third petition. It cannot be urged here that the bill was in effect a bill of review for under the facts as therein stated a bill of review cannot lie and a dismissal of the bill would have been proper.

"Bills of review will lie only for error of law appearing on the face or upon some new matter discovered after the decree and which could not possibly be used when the decree was made. Vaughn v. Cutrer, 49 Miss. 782; Mayo v. Clanay, 57 Miss. 674, and many other authorities.

Commencing with the case of Foster v. Alston, reported in 6th Howard, page 406, and decided in April, 1860, up to and including the last utterance by this court upon the custody of infants or minors, the court has uniformly held that the question of custody is to be determined solely upon the interest of the child or its best interest. See Cocke v. Hannum, 39 Miss. 423: Maples v. Maples, 49 Miss. 393; McShan v. McShan, 56 Miss. 413; Fullilove v. Fullilove, 62 Miss. 11; Gildwell v. Morris, 89 Miss. 82; Wallace v. Wallace, 46 So. 398; and O'Neal, v. O'Neal, 48 So. 623.

And in a number of these cases the question as to the paramount right of father or mother to the custody of the child has been involved but in each instance, this paramount or supposedly paramount right of the one as against the other has given away to the "polar star" towit: What is the best for the infant, or where would it be best circumstanced for the present and future?

The respondent did not undertake in the instant case to show the mother unworthy, did not undertake to show his superior ability, but did show that it was in a good home, that it was being cared for, and if carried with its mother, as she admitted, it would be a dependent upon a step-father who had never seen it or known it, and who had never manifested any interest in it at all, while if left where it was, it would be with an uncle, cared for and watched over by aunts, blood of its blood, flesh of its flesh, who loved it for itself and for their dead brother's sake.

The evidence, and the pleadings show that the mother lost her right when she dismissed her demand in the court for the minor and permitted the father to bring it from Jackson to Amite county where it remained in the charge and care of its uncles and aunts who have taken a mother's place, the only mother the boy has ever known who he says that he loves and wants to stay with. Was the court wrong under the facts or the law in saying to this mother, you are the same person who had a chance to demand the baby when he needed your care your love and attention, but forewent that chance and that right in order to get a divorce, and now since other hands have taken your place, since others have worked for and loved and watched over your baby, you must now leave him where it appears best for him. The court was within its discretion in such matters as these in looking into the past, present and future conditions and circumstances and in saying whether or not it was or would be best for...