142 Mo. App. 579 | Mo. Ct. App. | 1909
The petitioner, George Orey, seeks by a writ of habeas corpus issued from this court to obtain the custody of his daughter Georgia, a child born October 2, 1908, and hence a few days over a year old. On May 5, 1909, Mary Orey, mother of the child and wife of the petitioner, placed the child in the Children’s Home Society of Missouri, a corporation chartered under the laws of the State, with power, under certain circumstances, to- receive from parents the release of their parental rights over children. [E. S. 1899, chapter 35.] Afterwards the child was placed by the Children’s Home Society in the family of Eoy E. Moller, said family consisting of Eoy E. Moller and his wife, who resided at Maplewood, in St. Louis county. Those persons and the Children’s Home Society executed a deed of adoption of the child on July 13, 1909, but the deed was not recorded in the office of the recorder of deeds of the county until August 24, 1909, which was after the institution of a prior proceeding by the petitioner before the judge of the circuit court of St. Louis county to recover the child. The circumstances leading up tó the child being put in the Children’s Home by its mother were these: The petitioners, George Oréy and his wife, married in Vincennes, Indiana, and lived there until September, 1908, at which time they had four children. He is a man thirty years old and she a woman somewhat younger. Orey had an uncle living
The decision of the learned circuit judge, adversely to the petitioner, cannot be taken as res judicata of his right. [Wier v. Marley, 99 Mo. 484.] Brushing aside all technical grounds, like the omission to record the deed of adoption until the institution of the first proceeding by habeas corpus, and the further question as to whether the deed by the mother was so drawn and under such circumstances as to bind anybody, we go to the merits of the case as between the petitioner, the father of the child, and the respondents. It is true in controversies over the custody of children, their own