Willis v. Willis

• Decision Date: 12 October 1905
• Docket Number: No. 20,500.,20,500.
• Citation: 75 N.E. 653,165 Ind. 325
• Parties: WILLIS et al. v. WILLIS.
• Court: Indiana Supreme Court

165 Ind. 325

75 N.E. 653

WILLIS et al.

v.WILLIS.

No. 20,500.

Supreme Court of Indiana.

Oct. 12, 1905.

Appeal from Circuit Court, Marion County; Henry Clay Allen, Judge.

Habeas corpus proceedings by Hattie Bell Willis against Nathaniel Parker Willis and another. From a judgment in favor of petitioner, respondents appeal. Affirmed.

Chambers, Pickens, Moores & Davidson and Means & Buenting, for appellants. Martin M. Hugg and James A. Collins, for appellee.

JORDAN, J.

Appellee, Hattie B. Willis, petitioned the lower court to issue a writ of habeas corpus against appellants for the purpose of securing the possession or custody of her infant daughter. The writ was accordingly issued. Appellant Nathaniel P. Willis appeared in court, and filed a separate motion to quash the writ, on the grounds: (1) That the petition did not show or allege that the infant child therein mentioned was unlawfully or illegally restrained of its liberty. (2) That it did not show a sufficient reason to entitle the petitioner to the custody of said child. (3) That it did not show any sufficient reason why the defendant was not entitled to its custody. (4) That it did not show the cause or pretense of restraint. This motion was overruled, to which appellant excepted. Each of the appellants filed a separate return to the writ of habeas corpus. Trial by the court, and finding in favor of the petitioner, appellee herein, to the effect that she was the mother of said infant, Mary Frances Laura Willis, and was entitled to her custody, and that the respondents, appellants herein, unlawfully restrained said infant of her liberty. Judgment was rendered upon the finding that said infant be discharged from the custody of the respondents, and that her custody be awarded to the petitioner. Written motions by the respondents for a new trial for the reasons therein specified were filed and overruled. Appeal prayed and taken to this court.

Appellant Nathaniel P. Willis separately assigns as error (1) that the court erred in overruling his motion to quash the writ of habeas corpus, and (2) that the court erred in overruling his motion for a new trial, to which ruling he excepted. He and his co-appellant jointly assigned (1) that the court erred in overruling their motion to quash the writ, and (2) in overruling their motion for a new trial, to which ruling they excepted.

The petition substantially discloses that the petitioner, appellee herein, and appellant Nathaniel P. Willis are husband and wife; that they live separate and apart from each other; that the infant child in question, Mary Frances Laura Willis, is of the age of 18 months; that the petitioner is its mother, and the said defendant is its father; that it is the legitimate issue of the marriage between the petitioner and the defendant. Appellee has had the sole care, charge, and custody of said child from the time of its birth until, as alleged, it was fraudulently taken from her care, charge, and custody by the defendants, as hereinafter shown. The parties were married on April 25, 1900, and since that date the defendant has been guilty of cruel and inhuman treatment of his said wife, appellee herein; he has been an habitual drinker of intoxicating liquors, and accustomed to returning home in an intoxicated condition. On divers occasions he cursed and beat his said wife “until she was compelled to take her bed.” By reason of the kicking and beating she received from the defendant, she was made sick for a period of three months. In the month of October, 1901, appellee was compelled to leave the defendant on account of his cruel and brutal treatment towards her. Thereafter, in the month of January, 1902, upon repeated promises made by the defendant to her that he would reform, she consented to return to his home, but the defendant continued thereafter to abuse and brutally mistreat her, until his abuse became so violent that she was compelled to seek the home of her mother for protection. On one occasion the defendant threw her down, and on another occasion, after the birth of said child, while she was sick in bed, he cursed and abused her, and would return home “beastly drunk.” By reason of his habitual and constant abuse, the appellee was compelled, on or about the 15th day of July, 1904, to leave the defendant, and with her said infant child she appears to have gone to the state of Missouri. In August, 1904, she, with the said child, was living at a place called Hayti in said state. The defendant came to the place where she was living, and represented to her that, if she would return to Indianapolis in the state of Indiana, he would divide their property and secure her a divorce. Upon their arrival at Indianapolis, on their return from said state of Missouri, the defendant represented to the appellee that his mother, Ella Willis, co-appellant herein, was very ill, and that she desired to see said infant child, and he agreed and promised appellee to return the child to her early in the afternoon of said day. She believed his representations and statements to be true, and allowed him to take the child in question to the home of his mother, Ella Willis, in the city of Indianapolis, Ind. It is alleged that said defendants, Nathaniel P. and Ella Willis, have ever since kept said child in their care, charge, and custody, and have deprived appellee of the care, charge, and custody thereof. Appellee further shows in her petition that she is ready, able, and willing to care for said child, and that she is a fit person to have the care, charge, and custody thereof, while on the contrary the defendant Nathaniel P. Willis is not a fit person to have the care and custody of the child; that he is a man who is addicted to the use of intoxicating liquors, has a violent and ungovernable temper, and is away from his home until late in the night; that he frequents and spends a great portion of his time in saloons, and thereby is compelled to leave said child with his mother, Ella Willis. The latter, it is alleged, is not a fit person to have the care and custody of said child; that she is a woman of violent and ungovernable temper, and has unkind feelings toward appellee, and, if allowed to retain the custody of the child, she would teach it to dislike and hate appellee, its mother. It is charged that the defendants have unlawfully and wrongfully seized the body of the child in question, and without cause restrain it at No. 128...