Holden v. Smith, No. 24130

No. 24130 | Miss. | May 12, 1924

Ethridge, J.,

delivered the opinion of the court.

On April 23, 1923, L. S. Smith, the grandfather of Susan, Smith, a minor twelve years of age, filed a petition with the circuit judge of the district in which Pearl River county is situated, alleging that Monroe Smith is the father of Susie Smith, now twelve years of age, and that he had been for five or six years a widower, charged with the support of this little girl and her younger sister, ten years of age; that, when Monroe Smith was left a widower, he placed the child Susie in care of his sister, Mrs. Mitchell, and that he had furnished her with necessaries as far as he was able to do so, but that said child is now left abandoned and destitute, for the reason that the said Mrs. Mitchell is seriously, and perhaps fatally ill, and is confined to a hospital at Gulfport, Miss., and the said little girl is left without a home, unguarded, and is likely to develop into criminal practices or be subjected to inhuman treatment or conduct; that the father, Monroe Smith, was physically disabled while in service with the overseas forces during the World War, and has been under treatment of the government physicians for about two years, and on this account he is physically unable to provide the necessary support for his two children, especially the said Susie', as he has no other relative who will give her a suitable home; that she is therefore abandoned, destitute, and subjected to immoral circumstances, and petitioner prayed for an order commanding Monroe Smith to appear before the court and answer the petition as to why the child should not be committed to the said institution; that he also bring before the court the said minor; and that, after a full hearing, the court will commit the said child to the said Mississippi Industrial Training School.

Mrs. M. J. Holden, the mother of the child and former wife of Monroe Smith, was at the time of the filing of the petition living with her husband, M. J. Holden, in the town of Picayune in Pearl River county. She was not made a party to the petition nor given any notice thereof ; neither does the record show that Susie Smith, minor, was served with any process. The court at the April, 1923, term of the circuit court of Pearl River county signed an order reciting that the “defendants having waived the issuance of process of service on them, and having agreed in writing that the said petition be heard this day by the court, and the parties being present in open court, and the court, having heard and considered the said petition and the evidence in support thereof, doth find that the minor defendant, Susie Smith, is delinquent and incorrigible, and should be committed to the Mississippi Industrial and Training School, and the court finds that all necessary parties have been made defendants to the petition,” and ordered said minor committed to said institution.

Thereafter Mrs. M. J. Holden, the mother of the said child, went to . the home of the sister-in-law, Mrs. Mitchell, who formerly had the child in her possession, and secured possession of the child, and took it to her home in-Picayune; and, subsequently learning of the ■order of the court committing said child to the Industrial Training School, filed a petition with the circuit court, praying that said order be set aside and revoked or modified to the extent that said child should not be committed to the said school, and a vacation order made and she be not committed until the application of the mother could be heard. The judge thereupon signed an order reciting that all parties were not ready for the reinvestigation of said cause and the trial of same; that said girl was being properly cared for; and that the hearing of the matter was postponed until some day during the November term of the circuit-.court, the particular date of the hearing to be fixed by the court after it was assembled on the first Monday in November; that all parties interested in said matter. acknowledged notice of said hearing", and agreed to be present and present their respective contentions.

At the November term of the court the court heard the evidence on behalf of all the parties, and refused to vacate the original" order made in April by him, and ordered the child committed to the said institution.

It appeared upon the hearing on the part of Mrs. M. J. Holden that she married her present husband in the year 1920; that for more than two years prior to the hearing they had been living in the town of -Picayune, and that the said child attended the public schools at that place, and- had never been convicted of violating any municipal or state law; and that said child was a good, obedient child, and was being properly cared for by Mr. and Mrs. Holden. The superintendent of the said school testified that she had never violated any of the school regulations, and was an average child; that he saw no evidence of maltreatment or evil character. The town marshal testified that the child had never violated any law, had never been convicted of violating any law, or charged with violating the law, and that Mr. and Mrs. Holden were apparently kind and considerate of the child, and enjoyed the reputation for peace and order and industry, and that he had never seen any evidence of maltreatment of the child. The Holdens’ family physician testified to like effect.

It was shown that Mr. Holden lived in his own home, and was earning upwards of one hundred twenty-five dollars per month, and had only his wife, the child in. question, and a child of his own to care for.

He testified that he desired the child to live with them, and had treated and would treat it as though it were his own child. The petitioner’s testimony, or the testimony of the Smiths who filed the original petition, failed to disclose any act of moral turpitude, or any of .delinquency on the part of the child, or that it had ever violated any law of the state or municipality.

Monroe Smith, father of the child and former husband of the appellant, testified that, after his return from the army, he found his wife and Holden living in adulterous relations on a certain plantation in the county, and that his wife proposed that, if he would give her a divorce, she would let him take the child, Susan, which he did, and placed it with his sister, as above stated. It is further shown that in August, 1919, the appellant obtained a divorce from Monroe Smith, and married M. J. Holden, in January, 1920; that since this marriage there is no charge or act proven showing any immoral act or delinquency on the part of the appellant. On the contrary, the proof shows that she is living a proper life with her present husband.

Treating the case as being pending before the court properly at the November term, and conceding for the purpose of this opinion that the court had the right to hear the original petition, and that all parties were before him .so as to give him full and complete jurisdiction, we still think the proof fails to make out a case warranting the order of commitment. The original act (Laws of 1916, chapter 111), creating the Industrial Training School, and providing for admission of children therein, provides* in section 4969 of Hemingway’s Code (section 6, chapter 111, Laws of 1916), that—

“ Any child less than eighteen years of age, residing or being at the time in the state of Mississippi.

“(a) Who violates any municipal ordinances or state laws, when the violation involves for the purposes of this act, shall be known as a delinquent child.

“ (b) Who is destitute or homeless, or abandoned or is in such an evil and immoral environment that such child is likely to develop into criminal practices unless removed therefrom and properly directed and trained, or whose environment seems to point to a criminal career, shall for the purposes of this act be known as a destitute or abandoned child.”. ,

Section 6, chapter 111, Laws of 1916 (section 4969, Hemingway’s Code), was amended April 4, 1922, Laws of 1922, chapter 195, so as to provide as follows:

“What Children to be Admitted to the School. — Sec- ■ tion 6. Any child less than eighteen years of age, and not less than seven years of age residing or being at the time in the state of Mississippi may be admitted to said institution, in the future, on the following conditions, and no other:

“(a) Where such child has violated any municipal ordinance or state law, when the violation thereof involved moral turpitude.

“ (b) When a circuit judge or a chancellor shall certify in writing that such child is either immoral, delinquent, or incorrigible in the opinion of such circuit judge or chancellor, and shall file said' written certificate with the superintendent of said institution as a prerequisite of admission. ’ ’

Section 8 of the act (chapter ill, Laws of 1916 [section 4971, Hemingway’s Code]), provides for the filing of a petition, and — “upon the filing of such petition, if it shall appear that either parent or guardian of said child resides in this state, the clerk shall issue a summons to such parent or guardian directing him to appear and produce such 'child at the hearing of said petition, at the time and place appointed, and show cause, if q,ny, why such child should not be adjudged to be a delinquent or neglected child within the meaning Of this act, and such summons shall be served not less than five days before the date set for the hearing, unless service be waived.”

Section 24 of chapter 111, Laws of 1916 (section 4987, Hemingway’s Code), provides for an appeal — “from the order of any court, judge or chancellor committing any child to the State Industrial and Training School or committing any child to the custody of any person.”

Of course, for the judge to find and certify in writing that such child is immoral, delinquent, or incorrigible requires evidence, and he cannot on hearing commit the child as incorrigible, delinquent, or immoral, when there is no evidence to support such finding in the record. It is clear that the child is innocent of any wrongdoing, and the law does not warrant a commitment to the institution under the facts disclosed in this record.

The judgment will be reversed, and the petition for commitment of the said child will be dismissed, and the child left with its mother until further order in a proper proceeding in the proper court for the custody of the said child.

Reversed and dismissed.