75 Ala. 409 | Ala. | 1883
This was an application by habeas corpus, sued out by the father, to obtain possession of his infant male child, about twenty months old. The child is in the possession of his maternal grandmother, with whom he was left by his dying mother, then living apart from her husband. The judge of probate denied relief, and left the child with his grandmother. The present is an appellate application, to obtain a review and reversal of the probate judge’s ruling. The writ was sued out*before the probate judge, November 27th, 1883, and was heard by him a few days afterwards, on oral proofs.
About July or August, 1882, petitioner went to Texas, leaving his wife and infant son with her mother, Mrs. Dickens, the respondent in this suit. Petitioner did not return to Alabama until ten days or two weeks before he filed his petition in this cause. He was with his father, a well-to-do farmer of moderate means, who had employed him to labor and live with him the then next, now present year, and agreed to furnish a home to him and his child. The mother of the child died while the father was absent in Texas. There is no conflicting testimony on the following subjects of inquiry: That both the grandmother Dickens, and the grandparents Murphy, are able to maintain and support the child, and are suitable persons to have its custody ; that the child is a very delicate one, requiring and receiving the tenderest nursing from its grandmother, and that, at the time of the trial, he was sick in bed, too sick to be brought before the court; and, for several months before he went to Texas, it is shown the father was quite intemperate. The proof is, that before that time he was temperate, moral and industrious. There is no testimony that the petitioner has any means or property of his own.
On the following questions there was conflict in the testimony : First, whether he deserted his wife, or she deserted him; second, whether at the time of the separation, he was supporting his wife and child; and third, whether on the day
Writ of habeas corpus denied.