84 So. 796 | La. | 1919
Lead Opinion
On motion to dismiss appeal. Relator and appellee moves to dismiss the appeal taken by respondent on the ground that, after the judgment appealed from had been rendered, respondent had acquiesced in the judgment by filing a certain motion in the district court.
Opinion on the Merits
On the Merits.
Plaintiff seeks through the writ of habeas corpus to obtain the custody and control of his minor daughter, Myrtle May Birch, born August 25, 1907, who he alleges is held against his will by the mibors maternal grandparents, Mr. and Mrs. George W. Baker. He further alleges that he has been divorced from Mrs. Clara May Baker, now the wife of -Bernard Girodina, and mother of the child, and that the said mother has waived and relinquished all of her rights and claims to said minor; that the physical and moral welfare of said child is being jeopardized by her present surroundings; that petitioner has always borne the expense of said minor’s support and education; and that he now has a comfortable home in the city of Bogalusa, where he can rear and educate his said daughter in the manner to which she is entitled, and in keeping with her station in life.
Respondents admit that they have refused to surrender the custody of said child to petitioner, and that the said mother has waived her right thereto, but aver. that the said mother had previously obtained a judgment of divorce from the petitioner on the ground of adultery, and in which she was awarded the custody and control of the said minor; that thereafter the said mother had joined in and consented to the adoption by respondents of the said child, in a formal notarial act of adoption in conformity with the law; that the said minor was born in their home, has always lived there, and that they have fed, clothed, educated, and cared for it in every way as their own. They further aver that the petitioner also consented and signed the act of adoption, together with respondents and the said mother, and that said child remains with them of her’ own free will. All other allegations of the petition were denied.
Thereupon plaintiff filed a motion for judgment upon the face of the pleadings, and, this being overruled, respondents filed a motion to transfer the merits of the case to the juvenile side of the court. On the same day, May 12, 1917, the ease was tried, and the lower court rendered and signed two separate judgments: The first making the writ of habeas corpus and rule against respondents absolute, and decreeing relator “the permanent custody, care, and control of his minor child,' Blyrtle May Birch, subject to such action as the juvenile court may take as to the legal custody of the said child”; and, second, ordering “that the cause as to the custody of the child be transferred to and proceeded with before the Twenty-Sixth judicial district court, for Washington parish, sitting as juvenile court to determine in the interest of the child as to its further custody.”
Respondents appealed, and the relator appeared here and moved to dismiss the appeal, on the ground that the appellants had acquiesced in the judgment below by moving- to transfer the case to the juvenile court. The motion to dismiss was overruled by this court on June 2, 1919.
Opinion.
For the reasons assigned, the judgment appealed from is affirmed, at the cost of the appellants.