State ex rel. Giroux v. Giroux

15 Mont. 137 | Mont. | 1894

Pemberton, C. J.

— Prior to the seventeenth day of July, 1893, Joseph L. Giroux and Rebecca Giroux were husband and wife, and residents of the territory of Arizona. On that day, in a suit prosecuted by Joseph L. Giroux for that purpose, he obtained a decree of divorce in the district court of Yavapai county, in said territory, from said Rebecca Giroux. The decree, a copy of which is made part of this record, shows that the said Rebecca Giroux was personally served with process. Said decree gave to Joseph L. Giroux the custody and care of George L. Giroux, an infant child of Joseph L. and Rebecca Giroux, and she was ordered to surrender the custody of said infant to Joseph L. Giroux, the said infant, at the time of said decree, being temporarily in the state of Montana. It also appears from the record that on the eighth day of July, 1893, the said Joseph L. and Rebecca Giroux entered into a written contract in relation to the distribution of their property, and the care, custody, and support of their two infant children, by the terms of which contract the custody of the infant George L. was given and awarded to Joseph L. Giroux. Thereafter Rebecca Giroux returned to Montana, where the said George L. Giroux -was temporarily residing. On the thirtieth day of September, 1893, Joseph L. Giroux executed to the relator herein a power of attorney, authorizing him to take possession of said infant, and deliver him into the custody of Joseph L. Giroux, and to do all things necessary to be done in order to deliver said infant into the custody and possession of its father. The relator demanded the possession of said infant of said Rebecca Giroux, who refused to comply therewith, and upon such refusal the relator commenced this proceeding to obtain the custody of said infant. Upon the trial of case in the court below the respondent moved the court to quash the writ of habeas corpus, because the facts stated in the petition were not sufficient to warrant said writ, and because the petitioner has no right or authority to'bring this action. The court sustained this motion, and entered judgment dismissing the proceeding. From this action of the court this appeal is prosecuted.

It is true that the title of the case is technically wrong. The case should have been entitled The State of Montana ex. rel. Joseph L. Giroux v. Rebecca Giroux. When the court’s attention was called to this defect he should have directed the proper amendment or reformation of the title to be made. (See State ex rel. Greenland v. Second Judicial District Court, 13 Mont. 416, and authorities cited; State ex rel. Johnson v. Case, 14 Mont. 520.) In Territory ex rel. Tanner v. Potts, 3 Mont. 364, Mr. Justice Knowles commented upon the frequency of these irregularities in the practice, and expressed the hope that the profession would be more careful in such matters. Those irregularities, however, are still observable in the practice, but our courts have uniformly treated them as unimportant. The petition shows on its face that the suit was being prosecuted by relator for the benefit of Joseph L. Giroux, and all the facts stated in the petition show him to be the real party in interest. We think it was error to dismiss the proceeding on a technical objection to the petition, which the court had a right to amend on its own motion, and which should have been done in the furtherance of justice.

It is further insisted by the respondent that Joseph L. Giroux, the party in interest, could not institute and maintain this suit by his attorney in fact, Nathorst; that Nathorst is a. stranger to the proceeding, and could not institute the case. While we hold that the case should have been entitled as above indicated, we see no reason for holding that an attorney-in fact could not institute the suit and make the necessary affidavit, and take such other necessary steps in the matter as an attorney in fact could do in other cases. Nathorst was the duly appointed attorney in fact of Joseph L. Giroux, to do any and all things that Giroux himself could do to acquire the possession of said infant. Giroux was, therefore, to all intents and purposes, in court, and any judgment rendered in the case would be binding as to him.

The judgment of the court below is reversed, and the cause remanded, with instructions to overrule the motion to quash the writ.

Reversed.

Harwood, J., and De Witt, J., concur.