Watts v. Watts
| Decision Date | 13 October 1911 |
| Docket Number | No. 21,898.,21,898. |
| Citation | 95 N.E. 1107,176 Ind. 334 |
| Parties | WATTS et ux. v. WATTS. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Wabash County; A. H. Plummer, Judge.
Action by Caroline E. Watts against Josiah F. Watts and wife. From a judgment for plaintiff, defendants appeal. Affirmed.Will H. Anderson and Elmer E. Slick, for appellants. Joseph W. Murphy, for appellee.
This was an action in the nature of habeas corpus proceedings 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 charged that the defendants had obtained the custody of her said child by false and fraudulent representations, thereby inducing her to consent to its adoption by them; that they represented themselves to be moral and Christian people, and would give the child a good moral home, etc.; that under these circumstances they adopted her said 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.
[1] 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, first, on the insufficiency of facts alleged in the complaint; second, a lack of capacity to sue; and, third, defect of parties plaintiff. This demurrer was overruled, and appellants, who appear to have adopted the child jointly, answered the complaint 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 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 the defendant Nellie R. Watts, and that the defendants Nellie R. Watts and Josiah F. Watts be deprived of the custody of said child, Mildred Watts, and, further, that the said child, Mildred Watts, be given to the 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 the same to its natural mother, appellee herein, Caroline E. Watts (formerly Caroline E. McGath).
[2][3] Counsel for appellants in their points and argument assail the method by which this action was instituted; or, in other words, they contend that it should have been a suit in habeas corpus to obtain the possession of the child here involved, 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.
[4] 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...
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