38 Ind. 271 | Ind. | 1871
The appellee filed his petition on the 7th day of March, 1871, alleging that he was the father of Hettie A. Davis, and, as such, entitled to her custody; that she was of the age of seven years, and in the custody of the appellant, at the county of Franklin, in the State of Indiana, without right, and was unjustly and illegally restrained of her liberty, and unlawfully detained from the custody of petioner, against his will and without his consent; that the pretended cause of such restraint was, that seven years previously, when said Hettie was an infant, the petitioner gave the custody and control of said Hettie to the appellant; that in a former proceeding in said court, by the petitioner against Elizabeth, the appellant, the custody of said Hettie was awarded to him; that he took possession of said Hettie for a time, when said Elizabeth wrongfully, and against his will, obtained possession of her, and has ever since retained the possession and control of her, illegally, and without his consent. Prayer for the writ of habeas corpus, etc.
The court awarded the writ, returnable at 9 o’clock, A. M., of the second day thereafter.
On that day the appellant was called and failed to appear. The court, being satisfied from the sheriff’s return that the writ had been duly served, awarded an attachment. On a subsequent day of the term, the appellant appeared and made return to the writ, in which she stated that the said Hettie A. Davis was not, at the time the writ was 'served, in her power, custody, and control, nor had she since been; that she was, by permission of the defendant, at that time, and for some time previous, in the State of Ohio; that before she went to Ohio, she was in the custody and control of the defendant, not by restraint, but by her own voluntary act;
Davis excepted to the return, for the following reasons: first, because it was no answer to the writ; second, because it shows no sufficient excuse for not producing the said Hettie in court; third, because the said return does not show facts sufficient to constitute an answer to said writ.
The court, upon the hearing of the exceptions, made this order: “And the same being duly considered, the court order that said' defendant, as soon as Hettie A. Davis
The respondent excepted to this order, filed her bill of exceptions, and,.without any further proceeding in the case, appealed to this court. It is assigned as error:
First. The return of the appellant to' the writ of habeas carpus was sufficient excuse for not producing the body of the said Hettie A. Davis before the court; and the court erred in not overruling the appellee’s exceptions thereto, and in not discharging the appellant.
Second. The court erred in making the interlocutory order as well as the order in the nature of a final or positive order, requiring the appellant to produce the body of the said Hettie A. Davis before said court on the 20th of April, when the facts stated in the appellant’s return, and not denied, show that it is impossible for her to comply with said order.
Third. The court erred in not discharging the appellant unconditionally from the writ of habeas corpus, upon the facts stated in the return to said writ, which facts were not denied by appellee, but admitted to be true on the submission of the cause.
Fourth. The court erred in refusing the appellant’s motion for an appeal to the Supreme Court from the order of the court below, and in refusing to allow bond to be filed, and in refusing to fix the amount of bond and approving the same.
We are met at the threshold with the question, whether an appeal to this court can bp taken from the order made in this case. Counsel for the appellee insists that the appeal cannot be taken; that the order was not final, and that an
Upon the question as to the correctness of the order made, we are of the opinion that the court committed an error. The facts stated in the return, uncontroverted as they were, showed sufficient reasons why the child was not produced before the court. The return stated that the petitioner had left the child in the custody of the respondent; and, before the respondent could be placed in the wrong and subjected to legal proceedings by him on account of the custody of the child, it should have been made to appear that he had demanded the custody of the child, and that the respondent, having the power to do so, had refused to restore the child to him. The court should not have made a peremptory order that the appellant have the body of the child in court on the 20th of April, 1871. If it was found to be true that the- father of the child placed it in the custody of the respondent, and that he had not demanded the custody of it before it went to Ohio with its aunt, and before the issuing of the writ of habeas corpus, the proceeding should have been decided in favor of the respondent. If the matter stated' in the return was not controverted, it should have been regarded as true; and if it was not true, it might have been denied, and an issue of fact formed and tried. 2 G. & H. 318, sec. 723.
The judgement, or order, of the court is reversed, with