77 Neb. 612 | Neb. | 1906
The plaintiffs severally prosecute error from a judgment of the district court for Gage county adjudging them in contempt of an order of that court. The facts underlying this controversy are, briefly stated, as follows: One J. Alfred Johnson, a resident of the state of Iowa, commenced a proceeding in habeas corpus in the district court for Gage county against the plaintiffs herein and one Laura Terry to obtain possession of his two minor children. A trial resulted in an order or judgment of that court remanding the custody of one of said children, who was 17 years of age, to the respondents, and awarding the permanent custody of the other, Effie Johnson, who was but seven years of age, to her father, the petitioner. Respondents in said action, the plaintiffs herein, brought the case to this court where on the 5th day of April, 1905, the judgment was affirmed. See Terry v. Johnson, 73 Neb. 653. A motion for a rehearing was filed in due time, and was overruled on October 27, 1905.- Thereupon the mandate of this court Avas sent to the district court for Gage county directing the said court to carry out its said judgment and order. The complaint in the present pro
It further appears from the complaint and the evidence adduced at the trial that J. Alfred Johnson appointed his sister, Mrs. Gussie DeLorie, his agent to receive the child from the respondents; and on the 5th day of July the respondents went through the form of delivering her to the said Gussie DeLorie, but prior to such delivery prepared the papers in a habeas corpus proceeding in the county court, and immediately thereupon caused the papers, theretofore prepared to he formally filed. A writ issued, and within a few minutes the sheriff retook possession and custody of the child from the agent of her father, who being absent, and represented only by his sister aforesaid, it was found necessary to enter into an arrangement whereby the respondents again obtained the custody and control of said child. On the hearing of the complaint,the foregoing facts together with others having been made
The plaintiffs herein contend, among other things, that the findings and judgment of the district court are not sustained by the evidence. It is unnecessary to consume time or space in quoting the evidence. It is sufficient to say the record shows that the plaintiffs herein, after litigating the question of the right of the father to the custody and control of his minor child for at least two years, and after having hindered and delayed the execution of the judgment of the district court commanding them to deliver her into the permanent custody of the petitioner, merely made a colorable compliance with the order, and before doing so prepared the papers to procure a writ of habeas corpus from the county court of G-age county in order to recover possession of the child at the very moment of her delivery in pretended compliance with the order of the district court; that they commenced such proceeding, caused the writ to be issued and served, and thus attempted to render the judgment of no avail whatever. It is also clear that there was no excuse for such a proceeding, for the evidence fails to show any material change in the conditions existing , at the time the . order was made, and the only purpose of the proceeding complained of was to defeat and nullify such order of the district court. So we are of opinion that the evidence fully sustains the findings and judgment complained of, and justified the conclusion of the trial court.
It is further contended that the facts found by the court
Plaintiffs further- contend that in any event they were not guilty of contempt, because the proceeding in question was not commenced with any such intention. While intention is sometimes a necessary ingredient of the offense, yet there are many cases where the act done
It is also urged, that, because this action was dismissed as to Laura Terry, the plaintiffs must also be discharged. This does not follow. It seems clear that she did not com-encé the proceeding in question, was not present when it
Lastly, it is insisted that, because Laura Terry was one of the petitioners in the habeas corpus proceeding before the county court, the plaintiffs cannot dismiss that proceeding as to her, and for that reason the order should be set aside, and they should be discharged from custody herein. It is a sufficient answer to this contention to say that, if they used .the name of Laura Terry in commencing the habeas corpus proceeding upon their own responsibility, and without her knowledge or consent, they cannot be heard to object to the order of the court until they have themselves complied therewith as far as they are able.
After a careful examination of the whole record, we are of opinion that it contains no reversible error, and the judgment of the district court is therefore
Affirmed.