Watts v. Watts
| Decision Date | 13 October 1911 |
| Docket Number | 21,898 |
| Citation | 95 N.E. 1107,176 Ind. 334 |
| Parties | Watts et al. v. Watts |
| Court | Indiana Supreme Court |
From Wabash Circuit Court; A. H. Plummer, Judge.
Action by Caroline E. Watts against Josiah F. Watts and another. From a judgment for plaintiff, defendants appeal Affirmed.
Affirmed.
Will H Anderson and Elmer E. Slick, for appellants.
Joseph W. Murphy, for appellee.
This was an action in the nature of a habeas corpus proceeding, instituted by appellee, Caroline E. Watts (formerly Caroline E. McGath), against Josiah F. and Nellie R. Watts, husband and wife, to obtain the custody of her daughter by a former marriage, a girl five years old. By her complaint she alleged that defendants had obtained the custody of said child by false and fraudulent representations, thereby inducing her to consent to its adoption by them; that they represented themselves to be Christian people, who would give the child a good, moral home; that under these circumstances they adopted plaintiff's daughter. The complaint then sets out facts showing the immorality of the defendants and their unfitness to have the care, custody and education of said infant.
Appellants in response to a summons, appeared in the lower court and demurred to the complaint, thereby waiving the issuing of the writ of habeas corpus. The demurrer was based on (1) the insufficiency of facts alleged in the complaint, (2) a lack of capacity to sue, (3) defect of parties plaintiff. This demurrer was overruled, and appellants, who appear to have adopted the child jointly, answered in four paragraphs. Appellee demurred to these paragraphs of answer for want of facts. Her demurrer was sustained as to the second and fourth, and overruled to the third. The reply was a general denial. Upon the issues joined the cause was tried by the court, and a finding was made that "the defendants, Nellie R. Watts and Josiah F. Watts, are unfit persons to be intrusted with the care and custody of the infant child, Mildred Watts, named in plaintiff's complaint, because of the immorality of defendant Nellie R. Watts, and that defendants, Nellie R. Watts and Josiah F. Watts, be deprived of the custody of said child, Mildred Watts, and further, that said child, Mildred Watts, be given to plaintiff herein, Caroline E. Watts, until the further order of the court."
Over the joint motion of appellants for a new trial, assigning insufficiency of the evidence, and other grounds, the court rendered judgment upon its finding, depriving the defendants of the custody of the child, and awarding it to its natural mother, appellee herein.
Counsel for appellants assail the method by which this action was instituted; or, in other words, they contend that it should have been an action in habeas corpus to obtain possession of said child. But, as previously herein stated, the action was in the nature of a habeas corpus, and to all intents and purposes it was a proceeding of that character. It is true, as counsel for appellants contend, that the complaint was not verified, but they appeared in the lower court and acquiesced in this omission. At least they made no objections upon this ground. They could have presented that question to the lower court, if they desired, by a motion to strike the complaint from the files, which would have been a proper procedure. Under the circumstances, the verification of the complaint must be considered as having been waived by appellants in the lower court.
It is further insisted that appellee, the natural mother of the child, did not have the right to institute and maintain this action; that the suit should have been brought by the State of Indiana on the relation of some interested person. This contention cannot be sustained. The right of appellee to maintain this suit in her own name is authorized by § 1164 Burns 1908, § 1107 R. S. 1881. See, also, Willis v. Willis (1905), 165 Ind. 325, 75 N.E. 653.
The complaint alleges facts showing the immorality of appellants to be such as to render them unfit to be intrusted with the care and custody of this infant child. The pleading in question was addressed to the sound...
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