26 Wash. 412 | Wash. | 1901
The opinion gf the conrt was delivered by
On September 5, 1901, Esther M. Grant filed in this court her original application for a writ of habeas corpus, alleging, inter alia, that she was the mother of Gilbert A. Grant, an infant child, which ivas unlawfully restrained of its liberty by Thomas E. Prather and wife, and praying for the custody of said child. Thereupon this court made an order “that a writ of habeas corpus issue commanding the said Thomas E. Prather to produce the body of the infant child described in the petition before this court, on the 9th day of September, 1901, at 2 o’clock p. m. on said date, to show cause, if any he have, why said child should not be taken from his custody and disposed of as the court may order.” In obedience to said order, Thomas E. Prather produced the body of said child in court on said day, and filed his
“It is ordered that the said cause and all proceedings therein and the record thereof be delivered and returned to the judge of the superior court of Thurston county, and such testimony as may be produced by the parties taken before him, and that such testimony together with the findings of fact thereon, of said superior judge, be returned to the clerk of this court.”
Ho order was made as to the custody of said child pending the hearing, but said child was left in the custody of said Thomas R. Prather and wife. The evidence was taken by the superior court, and findings made thereon, and thereafter, but before the same was filed in this court, Owen M. • Grant, the father of said child, returned to the state of Washington, and on .the 15th day of October filed a petition in this court asking leave to intervene in said habeas corpus proceedings. This petition was denied. He thereupon took possession of said child from Thomas R. Prather, -whereupon Esther M. Grant filed-an affidavit in this court charging- that the said Owen JV1. Grant, well knowing that the said infant child was in possession of said Thomas R. Prather as- the custodian of this court during the pendency of relator’s, application for a writ of habeas corpus, in contempt of .this court did take the ■said child from the possession o.f said Thomas R. Prather,
This proceeding turns upon the question whether or not the child, was in custodia, legis or in the custody of Prather under his contract with the father, unaffected by
This being true, when the court made no change in the custody of said child, but left the same with the said Prather, this custody was the custody of the law. Ho order was required to give legal effect to" this custody under the writ. Respondent states that he was not aware of any order making said Prather the custodian of said child, but that he was aware of the effort in this court by Esther M. Grant to obtain possession of said child from Thomas R. Prather; that he had attempted to intervene in such proceedings and had been refused. We think this is sufficient to show that he must have known, or, at his peril, should have enquired whether, under these circumstances, the possession of Prather was the possession of the court or the individual possession of Prather. We conclude, therefore, that, even if the answer is true in fact, respondent is technically guilty of contempt; but, since he has disavowed any intentional disobedience of the order of the court, and made no effort to take the child from the jurisdiction thereof, he will be discharged upon paying a fine of one dollar and the costs incurred by the officer in taking, keeping, and returning said child to the possession of said Thomas R. Prather.