62 Ind. 533 | Ind. | 1878
This was an application by the appellant, as guardian of the person and estate of Dulcena Johns, minor heir of Martha Emmert, deceased, against the appellee, for a writ of habeas corpus, to obtain the custody of the appellant’s said ward.
„ To the writ of habeas corpus, issued on said complaint,, the appellee made his return, in substance, as follows: That he had the body of said Duleena Johns before the court, in-obedience to said writ; that the cause and pretence for the-restraint of said Duleena were, that the mother of said Dulcen a, in the mother’s lifetime, gave and transferred to theappellee the care, custody and education of said Duleena,. until she should arrive at the age of twenty-one year’s, in consideration that the appellee should have the-right to take and keep said Duleena, until she-should arrive at said age; that the agreement was mutual between the mother 'of said Duleena and' the appellee; that said Duleena had no legitimate father ; that, at that time, said Duleena was only four years old,, and had no home, nor any person to care for her; that the father of the said Duleena was unknown, and her mother-had long since been dead; that the appellee had had the care and custody of said Duleena for more than four years-then last past; that during that time the appellee had clothed and cai’ed for said Duleena, and had caused her to-, be taught to read and write; that said Duleena was them
The appellant demurred to the appellee’s return to said writ‘of habeas corpus, upon the ground that it did not state facts sufficient to constitute a good return to said writ, which demurrer was overruled by the court, and to this ruling the appellant excepted.
The cause having been fully heard, the court found, that the custody of the child, Dulcena, should be awarded to the appellee, and rendered judgment accordingly. The appellant’s motion for a new trial was overruled, and he excepted to this decision, and appealed to this court.
The following decisions of the circuit court are complained of as errors, by the appellant, in this court:
1. The overruling of his demurrer to the appellee’s return to the writ of habeas corpus issued in this cause.
2. The overruling of his motion for a new trial or hearing of his cause.
We have no brief from the appellee, in this court, and we confess our inability to discover any legal grounds for the decision of the circuit court. The- evidence is properly in the record. There is no conflict in the evidence, as to the material facts of the case. The child in controversy, Dulcena Johns, had no known father, and her mother was dead. The appellant was the brother of the child’s mother, and, by the appointment of the court below, on the 10th
Dulcena Johns, the child in controversy, it appears from the record, made the following statements, on the part of the appellee : “ I want to live with Mr. Emmert ” (the appellee); “ he treats me kindly; they don’t abuse me. I’m afraid to go to Mr. Johns ” (the appellant) “ for fear they will keep me. Mr. Johns always treated me kindly. I go there once every month. They never offered to make me stay at their house. I go to school, and can read and write. I am attached to Mr. Emmert’s family, and they to me.”
The express wish of Dulcena to live with the appellee afforded, perhaps, a sentimental reason for the decision of the circuit court; but it would have been strange, we think if, under the circumstances, she had expressed any different wish. It seems to us, that the wishes of the child, of such tender years, ought not to be permitted to outweigh the legal right of the appellant to the custody of his ward.
In our opinion, the court erred in overruling both the appellant’s demurrer to the appellee’s return to the writ, and the appellant’s motion for a new trial or hearing of this cause.
The judgment is reversed, at the appellee’s costs, and