172 Ind. 707 | Ind. | 1909
Action by appellant, David Shoaf, as guardian of Loren Livengood, an infant, to obtain through a writ of habeas corpus the custody and possession of said child. In brief, the following are the facts alleged in the petition to secure the writ: Appellant is the child’s grandfather on the maternal side. The child is six years old. Since March 29,1907, appellant has been the duly appointed and qualified guardian of the estate of said infant. The father and mother of the latter are dead. Appellant avers in his petition that, as such guardian, he is entitled to have the possession, care, custody and management of his said ward; that appellee is wrongfully in possession of the child, and wrongfully and unlawfully detains him at his home in the town of Wayne-town, Montgomery county, Indiana, and unlawfully deprives appellant of the custody thereof, although he has demanded of said appellee that he surrender the possession and control of said child; that he is prepared to furnish his said ward a good home, and to look after the proper education and management thereof. On the filing of the petition, the lower court ordered that a writ of habeas corpus be issued, which was accordingly done. It will be noted that the petition for the writ proceeds alone on the grounds that because appellant is the guardian of the estate of the child, its parents are dead, therefore, under the provisions of §3065 Burns^ 1908, §2518 R. S. 1881, he, as a matter of right, is entitled to have
Appellee filed a return in two paragraphs to the writ, the first of which was the general denial. • The second sets out substantially the following facts: Said child, Loren Liven-good, was born on January 11, 1902. His parents, Arthur Livengood and Ella Livengood, are both deceased. The defendant, George Livengood, is the paternal grandfather of the child. The petitioner, David Shoaf, is the great-grandfather on the maternal side. The child’s mother, Ella Livengood, died on November —, 1905, leaving surviving her her husband, Arthur Livengood. Shortly after the death of the mother the child was placed in the home of the defendant by his father, and became and was a member of defendant’s family from said time until June, 1907. In the latter month the father married and established a home of his own, and took said child to his home and kept him until a short time prior to December 3, 1907. Arthur Livengood died on December 3, 1907, and prior to his death, when he knew that he was fatally afflicted, it was agreed between him and the defendant, George Livengood, that the latter was to take said child into his home,' and, at his own expense, educate, maintain, board and clothe him. The father and defendant both • expressly agreed to such arrangement, and immediately upon the death of the father the defendant took said Loren into his own home, and has ever since said time been carrying out such arrangement, and in pursuance thereof he has furnished
It is alleged that, at the time of the appointment of plaintiff as guardian of the child, Arthur Livengood, then in life, was not notified, and had no knowledge" Avhatever, of the proceedings which plaintiff instituted to have himself appointed as guardian; that at said time the child and his father were both tona fide residents of Montgomery county, Indiana, and were not residents of Fountain county, Indiana, in which county the appointment of guardian was made by the proper authority; that the guardian, David Shoaf, is about eighty years old; that he has no home of his own, but makes his home among his children and relatives; that the wife of said David died many years ago; that he is old, infirm, uneducated, illiterate and unable properly to care for, support and educate the child; that there is no mutual love and affection between said guardian and ward, and that said guardian is not a proper person to have the care and custody of said Loren; that the latter desires to remain in the home and under the custody of the defendant, and does not desire to
To this return plaintiff filed exceptions, wherein he states that he excepts to each paragraph of the return, and for cause of exception says that each paragraph of the return fails to state facts sufficient to constitute cause for the further detention of the infant by the defendant; that each paragraph of the answer is wholly insufficient to deprive the plaintiff as guardian of the custody and possession of the child; that the pretended claim, under and by virtue of which the defendant asserts his right of further detention, is groundless and without warrant of law; that such answer and return do not state facts sufficient to constitute a cause of defense to plaintiff’s petition; and that neither paragraph of return states facts sufficient to constitute a cause of defense to plaintiff’s petition. The court overruled the exceptions, to which ruling plaintiff excepted, and then replied by the general denial. Upon the issues as joined there was a trial by the court, and upon the evidence introduced the court found that the plaintiff take nothing by reason of this action, and that it was for the best interest of said Loren Liven good to remain in the home of the defendant, and that the facts set forth in the return of the defendant are true. Thereupon the court entered its judgment, ordering and decreeing that the plaintiff take nothing by reason of his action, and that it is for the best interest of said Loren Livengood to remain in the home of the defendant, and that the defendant recover costs. The plaintiff then moved that the court grant
None of these decisions, except the last, can be said, under the facts in this case, to support appellant’s contention. It will be noted that the return to the writ, among other things, shows that appellant, the guardian, is eighty years old, is infirm, his wife is dead, and he has no home of his own, but resides among his children and other relatives, and is unable to care for, support and educate the child in question. It is further disclosed that there is no mutual love and affection existing between the child and appellant. On the other hand, it appears that appellee and his wife have given the child a good home and treat him as though he were their own offspring. They afford him all the comforts of life, and are able properly to care for and educate him. In considering the sufficiency of the second paragraph of the return, we do not regard as controlling, as against the legal right of appellant to the custody of the child, the fact that his father, a short time previous to his death, committed the child to the custody and care of appellee. But the return is sufficient alone upon the showing which it presents in respect to the unfitness or unsuitableness of appellant to have the custody, care and education of this infant child. Considering his age, and his infirmities incident thereto, and the further fact that he has no home of his own, makes it manifest that to commit the child to his custody would not be fot the child’s best interest or future welfare, which is the chief object to be attained, and one which must be the guide for the court in such cases. These facts, as disclosed by the return, overthrow the legal right of appellant to have the custody, eax’e and eontx’ol of this child. Brooke v. Logan (1887), 112 Ind. 183, 2 Am. St. 177; Schleuter v. Canatsy (1897), 148 Ind. 384; Berkshire v. Caley (1901), 157 Ind. 1; Gilmore v. Kitson (1905),
The second paragraph of the return being sufficient, for this reason we sustain it, over the general exceptions of appellant. Brooke v. Logan, supra.
Johns v. Emmert, supra, and Palin v. Voliva, supra, are decisions upon which counsel for appellant place much stress in support of their contention. It is true that in each of these eases this court affirmed that the provisions of §3065, supra, were mandatory, but this alone does not avail appellant. His counsel appear to have overlooked the fact that in Johns v. Emmert, supra, the court said: “Neither in appellee’s return to the writ, nor in the evidence adduced on the hearing, was there any cause shown why the appellant’s legal right to the custody of his ward should be denied him. ’ ’
In Palin v. Voliva, supra, this court also said: “The evidence given on the hearing does not show any reason why appellee's legal right to the custody of his ward should be denied.” These expressions of the court in the two cases in question clearly distinguish them, under the facts, from the case now before us, for, as heretofore shown, the facts alleged in the return overthrow appellant’s legal right, under §3065, supra, to the custody of his infant ward.
Bounell v. Berryhill (1851), 2 Ind. 613, was a habeas corpus proceeding by the guardian to obtain the custody of certain children who were his wards. The court in that case said: “The petitioner stands in the same situation in regard to the custody bf the children as the father. ’ ’
So far as the decision of Cottrell v. Booth (1906), 166 Ind. 469, may be said to sustain appellant’s contention that appellee is confined to a proceeding to remove him as guardian on account of his unfitness, and cannot be permitted in this action to interpose such unfitness in order to defeat his right to be awarded the custody of the ward, that case is expressly disapproved. The whole question in respect to the custody of the child in question was, under the facts in the case, addressed to the sound legal discretion of the trial court. It had before it the parties, heard all of the evidence, and thereupon denied the right which appellant demanded, and left the custody of the child with appellee. In the absence of the evidence, we cannot say that the court, in withholding from appellant the custody of his ward, in any manner abused its legal discretion. We find no error in the record.
Judgment affirmed.