19 N.J. Eq. 481 | N.J. | 1868
The opinion of the court was delivered by
The present motion rests on the single ground, that an appeal will not lie from an order made by the Chancellor in á proceeding by habeas corpus.
An order made strictly in pursuance of an habeas corpus, has the effect, simply to remove the unlawful restraint, and hence 'it has been a debatable question, whether such order, being of a merely temporary character, could be properly the subject of appellate cognisance. Such an order had no •efficacy in settling the right to the continued guardianship of infants. Such is not, in technical strictness, the office of this inestimable writ. In the case of Wollstonecraft, 4 Johns. C. R. 82, Chancellor Kent observed, “ that the object of the writ was to release the infant from all improper restraint, and not to try, in this summary way, the question of guardianship.” It is true that in some cases the court will go somewhat beyond thé mere removal of the unlawful restraint, and will transfer the person brought up by the writ, into the custody of him who has the clear legal right. Although there is much, confusion ih the precedents on this branch-, this I understand to be the correct rule of practice. And-such-, in some instances, should be the course pursued even where the subject of the writ is of an age to make an elec
It will be perceived that the course of practice thus indb
•Nor doéS'it s.ee'm to me that there is any weight in the suggestion that, looking on these proceedings as appertaining .to the general jurisdiction of chancery; the habeas corpus, was not the proper process to bring the parties into court..! It is certainly sufficient to say that the parties interested have actually appeared and been heard upon the merits,, and that consequently, upon obvious principles, no exception on this ground can be taken. The decision which has been rendered must be conclusive on these litigants, as there can be. no doubt that all courts and magistrates, except an appellate tribunal, would be bound to regard as res ad-judicata the right of the mother, by force of this decree, to the custody of these infants. The circumstance that an habeas corpus has been used cannot alter the legal nature of
Hor is it unimportant to remark, that the use of the habeas corpus in this proceeding was, to some extent at least, obviously regular. This writ is made the proper process with respect to such of the children as were under the age of seven years, by force of the statute relating to the custody of infants. Nix. Dig. 391. So far, therefore, as the decree applies to those of the children who were under the age thus designated, there can be no doubt of its technical propriety, even if we should take the case as a proceeding limited and controlled by the most rigorous practice on an habeas corpus. But I do not place my judgment on this narrow and partial ground, for I think the entire decree, as a mode of proceeding, under the pleadings and proofs in this case, is to be fully vindicated. A litigation was presented, appealing to the general power of the court, and the Chancellor, as it seems, has properly exercised that power.
Having arrived at the above conclusion, and as the decree in the present case gives the mother, who is the respondent on this record, the permanent custody of these children, and as that question was, in the pleadings and evidence, properly before the Court of Chancery, it follows, as an inevitable corollary, that an appeal will lie to such decree. That a decree, possessed of such characteristics, is the subject of appellate revision, so far as is known, has never been denied. The precedents of appeals in such instances are abundant. The motion to dismiss this appeal, therefore, should be denied.
Before leaving the subject, it is proper that I should say, that I do not wish to be understood as conceding the position
The whole court concurred.
After reading the opinion denying the motion to dismiss, argument was immediately had upon the appeal. The opinion of the court upon the appeal has been unfortunately lost; a diligent search and inquiry has failed to discover it, and the reporter greatly regrets that its publication will have to be postponed, at. least till the appearance of another volume. By the decree of the Court of Appeals, in accordance with that opinion, the two youngest children were left with their mother, and the eldest was allowed her election; the other three to be delivered into the custody of their father. The opinion of the Chancellor is reported in 3 C. E. Green, 195.