26 Kan. 485 | Kan. | 1881
The opinion of the court was delivered by
This is a petition for habeas corpus, brought by the petitioner, charging that he is illegally restrained from his liberty by the defendant. The petition alleges that the petitioner is a minor, aged about eight years; that his parents are both living, and keep house in Allen county, owning a small farm upon which they live, and a small amount of personal property; that they are abundantly able to take care of themselves and their children; that they always kept.house and provided for their children until during a short time in the winter and spring of 1879, when, his father being a farmer and losing his crops and being temporarily sick, as was also his wife, the mother of this petitioner, they were obliged to and did receive aid from the county poor-fund, and were for a time kept at the county poor-farm; that after recovering health his father procured work by the month and left the poor-farm, his wife and two children, including the plaintiff, still remaining at the farm; that after he had gone to work, intending as soon as possible to provide a home for his wife and children, and on the 24th day of April, 1879, without the knowledge or consent of either of his parents, and without his own consent, the superintendent of the county poor-farm filed an unverified petition with the probate judge, representing that the plaintiff was a county charge, and that the defendant was willing to take him as an apprentice until he arrived at the age of eighteen years: whereupon the probate court bound him out as an apprentice to said defendant, and the charge is that th'e probate court had no power to make such an order, and that therefore the apprenticeship is illegal and void, and the petitioner entitled to be relieved from his present restraint. No complaint is made of cruel treatment by defendant, no charge of unfitness to have the care and custody of a child, nothing in short which tends to show that a regard for the
It is alleged in the habeas corpus petition .that the parents had no knowledge or notice and gave no consent, but the statute does not provide for either; it contemplates independent action by the superintendent of the poor-house whenever any child becomes a county charge, and the validity of the court’s action in such a Gase in no manner depends upon the wishes or knowledge of the parents. That the child was then a county charge, appears not merely from the probate records, but is admitted in the habeas corpus petition. True, it is averred that it was only temporarily such charge, but in no case, perhaps, can it be positively shown that a child who has parents living will remain a permanent county charge. All that the statute requires is that it be, not that it will remain such charge during its minority unless bound as an apprentice. Of course, great care should be shown by superintendents of the county poor-house and by probate courts, to guard against the binding-out of children who only temporarily need county assistance, and perhaps such proper care and examination were not given in this ease; but the absence of it does not render the proceedings void. A certificate of the probate judge has been filed in this case, stating that this order of apprenticeship was made without any testimony supporting the petition. We cannot consider this certificate as evidence. You cannot impeach a formal judgment of any court having jurisdiction, by parol testimony that the court rendering the judgment did not have before it proper or sufficient testimony to justify such judgment. In other words, you cannot try in a collateral way the question once adjudicated. These considerations lead to the conclusion that the order of apprenticeship was legally made and is binding on the petitioner. This compels judgment for the defendant, yet the petitioner is not without remedy, if as a matter of fact he ought to be returned to the custody of his father. Section 13 of the act concerning apprentices gives the probate court power, when circumstances require it, to discharge an apprentice from his apprenticeship,
Judgment will therefore be entered for the defendant.