56 S.E. 878 | N.C. | 1907
Lead Opinion
Tbe petitioner, Egbert Hardy, was on 12 December, 1905, on his ex-parte .application, appointed guardian of his nephew, Samuel Parker, an infant without property. The mother of said Samuel died at his birth and the "child was taken by his aunt, Mrs. Swinson, by whom he has been ever since and with whom he still remains. The child’s father died a year after its mother. Notice of the application for guardianship should have been given to Mrs. Swin-.son and other relatives as required by Revisal, sec. 1772. ..Failure to do this is an irregularity which does not render void the appointment of guardianship, but certainly suck appointment, being without notice to the relative then in charge of the infant, is not binding upon her. She had no ■opportunity to opose the order appointing the guardian, nor to appeal from it, and it is not a decree disposing of the custody of the child as against her.
■ Besides, “it is well settled that the right of guardianship cannot be tried on habeas corpus” (15 A- and E. (2 Ed.), 4.84) “nor to determine the right of .guardianship”; nor “to decide as to conflicting rights to personal custody.” Ib., .156. The petition sets out sufficient matter to cause the writ to issue, but upon the investigation' it did not appear that the child was detained against its will, and the Court found as facts that the child is about eleven years of age, is well cáred for by Mrs. Swinson, who took the? infant at its birth and has cared for and nurtured it ever since at her own expense; that the guardian has contributed nothing to that .end; that the child is sent to school and Sabbath school, and is taken to church regularly, and that the character of his aunt and of her husband is good and the care and training-given by them to the infant, Samuel Parker, are such that it
The object of the writ of habeas corpus is to free from illegal restraint. When there is none, the writ cannot be used to decide a contest as to the right custody of a child (except when the contest is between the parents of the child. Revisal, sec. 1853). State v. Cheeseman, 5 N. J. L., 511; State v. Clover, 16 N. J. L., 419; Foster v. Alston, 7 Miss., 406, and numerous other cases cited. 15 A. and E. (2 Ed.), in note 2, p. 156, and in note 2, pp. 184, 185, 186, and notes. The rule is clearly stated by Chancellor Kent. In Wollstone-craffs case, 4 Johns. Chan., 80, be says that the sole function of the writ in such cases is “to release the infant from all improper restraint, and not to try, in this summary way, the question of guardianship, or to deliver the infant over to the custody of another; that it is only to deliver the party from illegal restraint, and if the infant is competent to form and declare an election, then to allow the infant to go where it' pleases, and if too young to- form a judgment, then the Court is to exercise its judgment for the infant.” In short, the writ of habeas corpus cannot be used as a claim and delivery of the person.
The guardian must assert bis right to the custody of bis ward by a civil action against the persons, now in charge of bim, while they in turn, if so advised, can take appropriate steps to set aside the guardianship. In this summary proceeding by habeas corpus the Court can only consider the rights of the child — whether be is under illegal restraint or not — and if be is not, the Court will follow the course laid down by Chancellor Kent, quoted supra.
Affirmed.
Concurrence Opinion
concurring: I concur in the disposition made of this case for the reason that the placing of the child was in ,'the sound legal discretion of the Court; and that, on the facts presented, such discretion was properly exercised when the child was left in the control and custody of its aunt, Mrs. " Swinson.
■ If, as the principal opinion assumes, the appointment of ^.Egbert Hardy as guardian was only irregular, then such appointment is not open to collateral attack, and stands as the . judgment of the Court until same is reversed on appeal or set aside on motion; and this both as to Mrs. Swinson and all others. Williams v. Pender, 127 N. C., 481; Black on Judgments, sec. 261.
Hardy, then, being the guardian of the -person, duly appointed, and the parents of the child ¿being dead, has the 'prima facie right to the custody of -the ward; but this superior right of the guardian does not obtain necessarily nor as a matter of law.
• The .authorities are to the effect 'that in this country the disposition of thei child rests in the sound legal discretion of the Court, and that it will be exercised as the best interest of the child may require. Newsome v. Bunch, 142 N. C., 19; Tiffany on Persons and Domestic Relations, p. 308; Shouler on Domestic Relations, sec. 240.
The best interest of the child is being given more and more prominence in cases of this character; and, on especial facts, has been made the paramount and controlling feature in well-considered decisions. Bryan v. Lynn, 104 Ind., 227; In re Welsh, 74 N. Y., 299; Kelsey v. Greene, 69 Conn., 291.
.Again, I think it is well established that, while in habeas corpus proceedings concerning the custody of children the power of the Court is ordinarily restricted to freeing them from illegal restraint and allowing them to select their plac
In Musgrove v. Kornegay, supra, it is intimated that, so far as the matter is dependent on an arbitrary limit, the age of twelve years in this country, and in cases of this kind, will be considered the age of discretion; in England it seems to have been fourteen years, and there being two children— one above, and one below this age — the Court, in determining ifpon the judgment, said, “As to the one over twelve years of age, we find it settled that the proper order is to discharge the infant .and permit him to go where he pleases. And in respect to the other, who is under the age of twelve, we find, by the same authority, that the proper order is to restore him to the custody of his father.”
In Mayne v. Baldwin, supra, the child being five years and seven months of age, the Court said: “In this case, the child is of such tender years the father could properly apply for the writ of habeas corpus in his own right without the privity of the child; and it is a case in which, for want of discretion in the child, it is proper that instead of merely delivering the child from improper restraint, an order should be made delivering the child to its father. Citing 3 Hill, p. 399.
And, in the notes of the Encyclopedia above referred to, it is said: “The power of the Court in habeas corpus to deter
In at least three of the authorities cited in the principal opinion the child had reached the age of twelve and over; ,and the child was set at liberty because it was held to have the necessary discretion to make such an order proper.
Section 1853, Revisal, was enacted to enable the Court to make proper regulations as to the care and custody of children as betweeiL husband and wife who are living in a state of separation without being divorced. It seems to be confined to such cases, and has, to my apprehension, no perceptible bearing on the case before us.
I concur in the decision for the reason that it affirmatively appears that the best interests of the child require that it remain, for the present at least, with its aunt, the respondent, and that the legal discretion vested in the Court in such cases has been properly exercised.
Lead Opinion
HOKE, J., concurring. The petitioner, Egbert Hardy, was on 12 December, 1905, on his ex parte application, appointed guardian of his nephew, Samuel Parker, an infant without property. The mother of said Samuel died at his birth, and the child was taken by his aunt, Mrs. Swinson, by whom he has been ever since supported and with whom he *120 still remains. The child's father died a year after its mother. Notice of the application for guardianship should have been given to Mrs. Swinson and other relatives as required by Revisal, sec. 1772. Failure to do this is an irregularity which does not render void the appointment of a guardian, but certainly when it is made without notice to the relative then in charge of the infant, it is not binding upon her. She had no opportunity to oppose the order appointing the guardian, nor to appeal from it, and it is not a decree disposing of the custody of the child as against her.
Besides, "it is well settled that the right of guardianship cannot be tried on habeas corpus" (15 A. E. (2 Ed.), 184); "nor to determine the right of guardianship"; nor "to decide as to conflicting rights to personal custody." Ib., 156. The petition sets out sufficient matter to cause the writ to issue, but upon the investigation it did not appear that the child was detained against its will, and the court found as facts that the child is about 11 years of age, is well cared for by Mrs. Swinson, who took the infant at its birth and has cared for and nurtured it ever since at her own expense; that the guardian has contributed nothing to that end; that the child is sent to school and Sabbath school, and is taken to church regularly, and that the character of his aunt and of her husband is good and the care and training given by them to the infant, Samuel Parker, are such that it would be to the best interest of (172) said infant for him to remain in the care and keeping of his said aunt and her husband. There being no illegal restraint shown, upon the above findings the court properly remanded the infant to the custody of his aunt.
The object of the writ of habeas corpus is to free from illegal restraint. When there is none, the writ cannot be used to decide a contest as to the right custody of a child (except when the contest is between the parents of the child. Revisal, sec. 1853.) S. v. Cheeseman,
The guardian must assert his right to the custody of his ward by a civil action against the persons now in charge of him, while they in turn, if so advised, can take appropriate steps to set aside the guardianship. In this summary proceeding by habeas corpus the Court can only consider the rights of the child — whether he is under illegal restraint or not; and if he is not, the Court will follow the course laid down by Chancellor Kent, quoted supra.
Affirmed.
