69 Miss. 754 | Miss. | 1892
delivered the opinion of the court.
The return “notfound” made the writ of habeas corpus in this case a failure, and the court should not have proceeded further with the case until it had secured the bodies of the children. Especially should it not have permitted the appellees to be heard until relieved of the suspicion, created by the allegations of the petition, coupled with the return made by the sheriff, that the children had been removed or concealed to evade the writ. The proper procedure would have been to issue a writ, directed to the defendants, requiring them to produce the bodies, or show to the satisfaction of the judge that they could not. They should not be permitted to test tlie question in dispute about the custody of the children until the children are before the judge, to be disposed of by his determination. '
A demurrer to a petition for habeas corpus seems to us bad practice, but the judge erred in sustaining the demurrer to the petition, which presents a proper case for the issuance of the writ. The board of supervisors has jurisdiction of poor
■ The petition shows that the board ordered one of its members, presumably the proper one, to take charge of these children, and secure for them a good home, etc., and that this member called on the appellees for the children, and they refused to surrender them, as they should have done. Undoubtedly, in this condition of things, the writ of habeas corpus was the appropriate means of securing the rightful custody of these children withheld from the person entitled thereto. Code of 1880, § 2519. That part of the order of the board of supervisors directing that the children be not “ placed in the hands of either of the parties now contending for them,” may be nu-' gatory, but the order for the supervisor of the proper district to procure a home for the children, was free from objection, and he was entitled to the custody of the children; and he who had the children in his custody, on the facts stated in the petition, had no right to withhold them. The case of Jack v. Thompson, 41 Miss., 49, is not applicable. Apparently, the supervisor of the district is entitled to the custody of the children, that they may be dealt with according to law, and he is ’entitled to the writ of habeas corpus, whereby to obtain that custody. The power of the law should be exhausted to secure the presence of the bodies of these children before the judge as its minister, and then the case should be disposed of as may be proper when the facts are disclosed. We know nothing of the contention between parties as to the custody of the children, and say nothing as to that, but we do say that the petition presents a case calling for the exercise of the power of the law to enable the constituted authorities of the county to perform the duties with which they are charged by law with respect to poor orphans in their county; and no one should be permitted to defy the law or its constituted authorities, or to trifle with its machinery.
Reversed and remanded.
