78 Neb. 811 | Neb. | 1907
These relators applied to one of the judges of the district court for Hall county for a writ of habeas corpus to regain the custody of a little boy then about three and one-half years old. .Upon the application the court made an order,- which recited that the boy, “a resident of said Hall county, has been unlawfully taken by force and strong 'hands from the county of Hall, and is now unlawfully detained in the county of Douglas, in said (state), by the said Wallace Porter,” and continued: “It is therefore ordered that a writ of habeas corpus issue to the sheriff of Hall county, commanding him to bring the body of said Eugene Thompson Porter forthwith before me or some other judge of the Eleventh judicial’*’district, at Grand Island,” etc. Pursuant to this order the writ was issued and delivered to the sheriff of Hall county, who took possession of the boy in Douglas county, and conveyed bim to Hall county, and returned his writ as follows: “I do hereby certify that I received this writ on the 8th day of February, A. D. 1906, at the hour of 8 o’clock P. M., and according to the command thereof I did on the 9th day of February, A. D. 1906, take the body of Eugene Thompson Porter into my custody in Douglas county, Nebraska, and at the same time and place delivered a copy of this writ to E. J. Porter, the person then having the custody of the said Eugene Thompson Porter, and afterwards to wit, on the 9th day of February, A. D. 1906, I served the within writ on the defendant, Wallace Porter, by delivering to him a true and certified copy of this writ, with all indorsements thereon, in Hall county, Nebraska, and now have the body of said Eugene Thompson Porter before this court as commanded by said writ. M. Dunkel, Sheriff,
1. The respondent objected to the jurisdiction of the court. This objection Avas overruled, and the first assignment of error in the proceedings is based upon this ruling. The objection is that the judge of the district court has no jurisdiction to issue a Avrit of habeas corpus to another county outside of his judicial district. This theory seems to be sanctioned by the practice of the federal courts. 21 Cyc. 309, and cases cited. From the same authority it Avould seem also to be the rule in most of the states; but it is manifest, as said in the text on page 311, that “the extent of the territorial jurisdiction of the different courts and judges is of course dependent largely upon statutory provisions.” The provisions of our statute bearing upon this question are unfortunately somewhat uncertain in their character. The supreme court of Kansas, in In re Jewett, 69 Kan. 830, 77 Pac. 567, appears to consider that under the provisions of their constitution and statutes the district courts of that state have no jurisdiction beyond their respective districts. The proceedings are civil in iheir nature. This is the general doctrine and has frequently been approved by this court. The constitution of Kansas provides: “The district court shall have such jurisdiction in their respective districts as may be provided by law.” Article 3, sec. 6. We have no such provision in our constitution. Our district courts are given general chancery and common law jurisdiction. The constitution created six judicial districts, and provided that there should be elected a judge in each district “who shall be judge of the district court therein,” and it provided that the legislature might redistrict the state. The provision of the constitution of Kansas in regard to the poAvers of the judges of the several courts at chambers appears to be
The boy was a resident of Hall county. He had been living with the relators for some time. The respondent came to visit him, and with the consent of the relators took the boy from the house, where he lived several times. Before this consent was given, the question was discussed whether the respondent was entitled to the custody of the boy, and, the parties not having been able to agree upon that point, the relators requested some assurance that the respondent would not take the boy away from their cats
2. The next question presented is a much more difficult and embarrassing one. The relators are the grandparents ■ of the child. They have carefully cared for it since the death of its mother, which occurred at the home of the relators in September, 1901. They have evidently given the child the best of care. As far as the evidence shows they have done all that a father and mother could do for its Avelfare, and manifested the highest regard for its best interest. Their situation in life is such as to enable them to furnish this boy with every advantage. No attempt is made to controvert any of these propositions. The respondent is the child’s father, and the laws of nature, as Avell as the common law of our country, declare that the best interests of every child demand that it shall have a father’s care. The first query in controversies of this kind should always be: What do the best interests of the child require? And in determining this question due regard should be had to the rights and feelings of its parents, AArho are its natural guardians. The presumption ahvays is that the father and mother are the most competent to determine what is best for the child, the most interested to determine rightly, and the best fitted to succeed in its successful nurture and training. The respondent is shown to be a young man of excellent character. Mr. Thompson, who knows him well, testifies that he has no bad habits. He is a bright, intelligent, industrious young man, devotedly attached to his boy, and, without doubt,
As the respondent did not remarry nor die during the minority of his son, the provisions conditioned upon these events, of course, are not effective. The child remained with the relators as long as their home was the respondent’s home, and, of course, there is no question of the violation of that part of the agreement. It will be observed that the respondent agreed to make the relators’ home his home as long as he was fairly treated, and, if this case depended in any way upon the construction and meaning of this contract, it would become very important to inquire whether the respondent was justifiable in 1 caving the home of the relators. Such contracts, of course, are always to be subject, to the best interest of the child, and are never to be enforced to the sacrifice of its interest. Moreover, it is due to the parties to this controversy to say in this connection that, although there is no substantial evidence in the record of any unfair treatment practiced by the relators against the respondent, still we think it ought not to be found from the evidence that the respondent was wholly unjustifiable in leaving the home of the relators. The relations between Mr. Thompson and the respondent appear always to have been pleasant and just; neither of these two has any words of criticism for the other. There were, however, manifestly some misunderstandings between Mrs. Thompson and the respondent. The evidence fails to show any sufficient cause therefor. Mrs. Thompson desired that certain articles which she had presented to her daughter should be returned to her after her daughter’s death. The respondent appears also to have prized these articles very much beyond their intrinsic value, and they were not returned to Mrs. Thompson.
A house and lot in Grand Island had belonged to the respondent and his wife. For some time they had made their home there. They procured it through the assistance of these relators and the parents of the respondent. After the death of the respondent’s wife, this property was rented, and Mr. Thompson had charge of'the collection of the rents. Out of these rents he paid taxes that had accumulated upon the property, and also made payments upon the respondent’s life insurance. An account was kept by Mrs. Thompson, consisting of charges against respondent for meals and lodging, and also for various articles furnished for the child. She testified that the arrangement that the respondent should pay his board was at his suggestion, and that the amount to be paid was named by him, and that she always told him that it was wholly immaterial to her. We do not find that this teste mony is disputed in the record, and there seems to be no cause for the misunderstanding betAveen them arising out of these transactions. That each of these íavo recognized that their relations and feelings for each other were not such as are usually expected to exist between members of the same family manifestly appears from the evidence. The respondent testifies positively that in conversations between himself and Mr. Thompson they both recognized this fact, and that Mr.' Thompson, just prior to the time that the respondent left relator’s home, said that it Avould. not be best for the respondent to continue longer to make his home with the relators, and that it Avas in accordance with this statement of Mr. Thompson that the respondent left their home. Mr. Thompson evidently did not intend that his remark should be understood to absolutely dismiss the respondent from his home. It would rather seem to be an acknowledgment on the part of Mr. Thompson that the existing conditions would justify the respondent in concluding that it would be
The respondent is a traveling man. While his Avife Avas liAdng, he Avas at home only occasionally, and since her death the conditions in that regard have remained substantially the same. In February, 1906, after he had left the home of the relators, he called there and informed them that he was going to take the child. They protested against it, and after some talk the respondent seemed to acquiesce in allowing the child to remain Avith the relators, at least for some time longer. Mr. Thompson suggested to the respondent that the matter of the custody of the child be left to the court; that they submit a friendly statement of the facts to the district court, and take the judgment of the court .thereon and act accordingly; and, this not being acceptable, and Mr. Thompson being compelled to leave home for a feAV days, he suggested to the respondent that nothing should be done in regard to the taking away of the boy until his return. In this he understood the respondent to acquiesce. After Mr. Thompson had gone, the respondent took the boy out several times, and Mrs. Thompson testifies that, Avhen he proposed doing so, she asked him if he was playing a trick on her, and he said that he was not, and took the child aAvay and
While we cannot find that it is our duty to interfere with the.judgment of the trial court, Ave feel that it is proper and necessary to say that this boy and his father must not be separated, and that the custody that is aAvarded to the relators should not be regarded as of a permanent nature. It may be that the events of a short time will demonstrate that the establishment of his home is permanent, and that such conditions will prevail that the benefit of a father’s care and training Avill be of more importance to the child than any advantages that can come from denying a father’s natural right. The decree of the district court provides that the relators shall have
We think upon the whole record the judgment is right, and as above modified it is
Affirmed.