13 Mont. 302 | Mont. | 1893
This appeal is from the judgment of the district court made upon the hearing of the application of Evalena Newell for a writ of habeas corpus. The proceeding was brought by the relator to obtain possession of her infant child, of the age of nine months. The respondent is relator’s husband. They were living separate and apart, the wife being at the home of her parents. The district court, by its judgment, gave the custody of the child to the mother, but with the condition that she should allow the father to visit the child twice a week. The judgment also taxed the costs against the respondent. Upon the hearing the court took the testimony of a number of witnesses. It appeared that the child was between nine and ten months of age, and not in robust health. It would seem that it had been weaned, but that the mother was engaged, as she said, in the care and nursing and rearing of the infant. Her parents, with whom she was living, were supplying the wants of the mother and child, and were able and willing to continue so to do. There was testimony by relator and respondent as to the cause of their separation, each claiming the other to be in fault, but there was no claim made, and no attempt whatever to show, that the mother was a person of immoral character, or in any way unfit to care for the infant.
We are of opinion that the district court exercised a perfectly sound discretion in giving to the mother the custody of the child of such tender years, and so apparently in need of a mother’s attention. Indeed, there is no very serious contention by the appellant upon this part of the case. He urges, however, that the court erred in taxing against him the costs of the proceeding.
In the Milligan Case, 4 Wall. 112, which was a habeas corpus proceeding, Mr. Justice Davis, delivering the opinion of the court, said: “ In any legal sense, ‘ action,’ ‘ suit,’ and ‘ cause’ are convertible terms. Milligan supposed he had a right to test the validity of his trial and sentence; and the proceed
Under these views of the word “ action,” and especially the opinion of the United States supreme court as to a habeas corpus proceeding, we are satisfied that subdivision 4 of section 495 of our Code of Civil Procedure is applicable to the inquiry in hand; that is to say, that this habeas corpus matter is a special proceeding in the nature of an action. It is a proceed
The judgment of the district court is therefore affirmed.
Affirmed.