71 S.W.2d 685 | Tenn. | 1934
By his appeal the relator seeks a reversal of the judgment of the trial court denying him the custody of his child, Richard Daugherty. The hearing was before the county court of Tipton County, given jurisdiction, concurrent with chancery and circuit courts, to hear and determine habeas corpus cases. Chapter 607, Priv. Acts 1911.
The cause was heard by the court upon the petition, the writ, the return or answer, and oral testimony. The evidence was preserved by a bill of exceptions, an appeal was prayed and granted, and errors complained of are indicated by appellant's assignments of error. Because there was no motion for a new trial indicating errors and affording the trial judge opportunity *491
to correct them, it is insisted by the appellee that there can be no review of alleged errors of law and fact. In Hebert v.Coleman, 3 Tenn. Civ. App. (3 Higgins), 319, upon authority ofRailroad Co. v. Johnson,
As heretofore stated, the procedure is summary, and, moreover, in determining the right to custody of children the judge is required to exercise a judicial *492
discretion. Barlow v. Barlow,
The adoption of such a rule would reduce the broad inquiry and the exercise of discretion by the trial judge in habeas corpus cases to the narrow consideration of whether or not there was any material evidence in the record to support the trial judge's disposal of the custody of a child or the liberty of a citizen. For that reason we are constrained to conclude that a motion for a new trial is not necessary to a review on appeal in habeascorpus.
We have considered the evidence upon which the trial judge refused to sustain relator's claim to custody of the child and upon which he rested the conclusion that it was against the interest and well-being of the relator's son, Richard Daugherty, aged eight years, to send him away from a secure environment where he is well cared for and carefully nurtured to Illinois among strangers, in custody of his father, who lost control by cruelty to the mother and child, and neglected the child until he commenced this proceeding. A review of the facts which support the decree of the trial judge is shown in the memorandum filed.
Affirmed. *493