19 Mont. 149 | Mont. | 1897
The record in this proceeding is unnecessarily voluminous, and bristles with exceptions to the admission or refusal to admit testimony. Many of these exceptions, also, are of so frivolous a nature that they have been ignored, not only in the arguments and briefs of counsel, but in the specification of errors itself. ■ A proceeding in habeas corpus is summary in its character,, and we feel it our duty to vigorously condemn any unnecessary impeding of this, its essential function, by technical and hypercritical criticism in reference to the admission of any evidence tending to enlighten the trial court. This is true despite any distinction of procedure or testimony to be observed in the case of a writ obtained by a parent to test the right to the custody of his child, and one issued to decide whether the petitioner is illegally deprived of his liberty. Mr. Church in his work on Habeas Corpus (section 177) says : “It has been heretofore observed that proceedings by habeas corpus are summary in their character, and that great discretion is given to and exercised by courts and judges in such proceedings. Where the statute provides that courts and judges may ventilate the whole matter brought
Upon the objection that it was incompetent and immaterial, the lower court at first excluded the decree and judgment roll of the divorce granted in Arizona, and then, at a later stage of the trial, admitted them for the purpose of showing that a divorce had been granted between Joseph L. Giroux and Rebecca Giroux. The consistency of these rulings is not apparent to us, but respondent’s counsel contend that this decree of divorce is void, and that the lower court found it to be so. An inspection of the judgment roll satisfies us that there is nothing on its face to indicate that the decree of divorce was void, and, the existence of the decree itself being denied,— even if it could be attacked on jurisdictional grounds by extrinsic evidence, — the exclusion was erroneous. But any error in this respect seems to have been cured by the subsequent admission of the decree and judgment roll, even though this admission was limited to merely showing that a divorce had been granted. The gist of the inquiry as to this decree is whether it is void, or only voidable. Mr. Freeman, in his work on Judgments (sections 562-564, 588 — 590), lays it down as a general proposition that, where an action is based on the judgment of a court of another state, the jurisdiction of that court to pronounce the judgment is always open to question, and that a defendant can controvert jurisdictional statements and recitals by any competent evidence, extrinsic or otherwise. Still, the scope of this jurisdictional inquiry is clearly limited, and Mr. Freeman, in the latter part of section 564, supra, clearly points this out. He says: “And ought not the defendant to be always permitted to prove that he was a nonresident, and that he did not submit himself to the jurisdiction of the state whence the record is taken ? On the other
The evidence in the record before us in no wise establishes the fact that this divorce was void. The Arizona clerk who issued the summons, the deputy sheriff who served it, and the relator, J oseph L. Giroux, all state most positively that there was no fraud in the service of the summons upon Mrs. Giroux. She herself, in her own testimony, virtually concedes that a summons was served on her personally while she was in Arizona. The evidence in the record, moreover, conclusively shows that at the time of this service she was a resident of Arizona. Nor does the fact that she departed from Arizona a few days prior to the rendition of the decree in any wise tend to establish the fact that she was a nonresident of that territory. Construing her testimony most favorably to herself, when she left Arizona she did so with no intent whatsoever to change her domicile and begin a permanent residence in Mon
It is claimed by counsel for respondent that the court below found the agreement for separation invalid. It was admitted in evidence over the objection of the respondent. But just what view the court took of this agreement the record does not disclose. In a case decided at the present term (Stebbens v. Morris, 47 Pac. 642), we stated generally our
The record shows that the relator, Giroux, has paid over to Rebecca Giroux the $1,300 he agreed to pay her, and that, even in the decree of divorce he obtained, a provision for the custody of his son alone was inserted, in strict compliance with the terms of the agreement. It inferentially appears, also, that Mrs. Giroux now relies upon this money for the maintenance of herself and the children. Should she be allowed, then, to assert a condition of financial responsibility so acquired, to establish her right to the boy, George, and at the same time object to any consideration of this very agreement which she repudiates, in so far as her own covenants therein are concerned? We.think not. As shedding light upon the right to the custody of this child, the lower court properly admitted the agreement in evidence; and, if it was subsequently ignored, error was committed.
The greater part of the material evidence and testimony in this record is contained in depositions and written instruments. Consequently, in considering its weight and effect we are not seriously hampered by that element of verity imported to the verdict of a jury, and the findings of a court corresponding thereto, when the witnesses have testified viva voce at the trial. The oral testimony of the respondent herself was manifestly elusive, vague, and contradictory. There was hardly any corroboration of it. Opposed to her statement were clear and straightforward denials in the depositions of several witnesses whose credibility was in no wise impugned, and who presumptively told the truth. The letter which Mrs. Giroux wrote to Mrs. Murry (see statement) in reference to the separation almost of itself contradicts her allegations as to fraud and deceit practiced upon her. The deposition of the notary public who took her acknowledgement to the agreement of separation states that, without the hearing of her husband, he made her acquainted with its contents, and in this agreement is a clear and unequivocal reference to the pending divorce suit. In this view of the law and the evidence, we do not think the lower court was justified in rendering the judgment it did. We do not wish to be understood as holding that this
Two other alleged errors are presented for our consideration. The following interrogatory was propounded to several witnesses whose depositions were taken, namely: “Which do you consider the better qualified to have the care and custody of their said minor child, George L. Giroux, now about seven years of age, — relator or respondent? ” It was objected to as incompetent on the ground that it asked for a conclusion of the witnesses. We think the court was ri^ht in sustaining the objection. The question manifestly asked for a conclusion, and was therefore clearly incompetent. The following interrogatory was also propounded: “State whether you consider respondent a fit and proper person to have the care and custody of the said minor child, George L. Giroux, and give reason for your opinion. ’ ’ While this last interrogatory is less objectionable than the former, still the objection to it, that it asked for a conclusion, was properly sustained. The judgment is reversed, with costs. The cause is remanded, with directions to the lower court to render judgment in favor of the appellant for the custody of the child George L. Giroux.
Reversed.