89 P. 1 | Wyo. | 1907
The defendant in error, Frederick John Tytler, plaintiff below, under the provisions of the habeas corpus act applied to the Judge of the Third Judicial District for a writ of habeas corpus to recover the custody of his two minor children, Muriel, aged thirteen and one-half years, and Eric, aged five and one-half years, from their mother, Helen Maud Tytler, defendant below. John St. A. Boyer, the brother of Helen Maud Tytler, was joined as defendant, but there was a disclaimer of any right to the possession of the children by him, a finding in his favor and a dismissal of the writ as to him. Plaintiff and defendant are husband and wife, having been married November 18, 1890. They
1. It is urged that the order and judgment in said, cause is contrary to law. Under the provisions of the constitution the Supreme Court has original jurisdiction in such cases, and each of its Judges “has power to issue writs of habeas corpus to any part of the state upon petition by or on behalf of any person held in actual custody, and make such writs returnable before himself or before the Supreme Court, or before any District Court or any Judge thereof.” (Art. V, Sec. 3.). The District Courts and their Judges “shall have power to issue * * * writs of habeas corpus on petition by or on behalf of any person in actual custody in their respective districts.” (Art. V, Sec. 10.) By these provisions the jurisdiction is an unqualified one lodged in the District Judge to hear and determine questions of this nature arising within the limits of his district, and is as broad in its scope as that of a court which has the power to exercise jurisdiction in a like proceeding. (Rust v. Vanvacter, 9 W. Va., 601.) It has long been established that the right of the custody of minor children may be litigated in habeas corpus proceedings. In such cases the question of personal freedom is not involved, for an infant, from
In the case before us the parties and their children are subjects of the King of Great Britain. The children prior to coming to Wyoming were, ever since their birth, in the joint custody of their father and mother until the parents separated, and since then, until they were taken by their mother, as hereinafter stated, they were in the custody of the father and resided with him in British Columbia. Since coming to Wyoming they have been in the custody of and residing with their mother. Such being the case, she was their protector and entitled to their custody, even as against the father, whether he resided within or without the jurisdiction, until he made it appear that a due regard for their welfare required that their custody should be taken from her. In Woodworth v. Spring, supra, in a controversy over the custody of a child, the Supreme Court of Massachusetts said: “He [meaning the child] is now lawfully within the territory and under the jurisdiction of this commonwealth and
2. It is urged that the finding, judgment and order are not sustained by sufficient evidence. The finding was a general one upon the issues and the evidence is in the record, part of which was oral. The trial judge had the benefit of having the parties and some of the witnesses before him. The case does not come before this court for trial de novo. In considering the evidence we do not, sitting as a court of review, assume to weigh it, but only look into the record to ascertain if the judge abused his discretion in awarding the custody of the children to their father. From the pleadings and the evidence both parents are very much attached to their children and both are anxious to do everything within their power for them. The exact cause of the separation does not clearly appear, though it may be inferred by reading between the lines. Their home was
It is alleged in the petition: “That the sole pretense of the said restraint, so far as your petitioner is advised and according to his best information, is the wish of the said Helen Maud Tytler to have possession of the said children; * * * that the said restraint is illegal and was originated and continued solely by the unlawful invasion of the home of your petitioner as aforesaid by the said Helen Maud Tytler and the said John St. A. Boyer, and the unlawful and forcible taking possession of the said children by the said Helen Maud Tytler and John St. A. Boyer, as aforesaid, and the unlawful and forcible and clandestine carrying away of the children by the parties last above named from the home of your petitioner to the said County of Sweetwater, in the State of Wyoming.” This allegation
In the case before us the children are with their mother. At the time of hearing, Muriel, who was just approaching the age of fourteen, expressed her wish to remain and live with her mother. She has now reached the age of fourteen, and her wish at this time as to who shall be her guardian is
We are of the opinion that the finding of the trial judge in favor of the father upon the issue as to the best interest and welfare of the children is not supported by the evidence and that the awarding of their custody to him was such an abuse of discretion as to call for a reversal of the judgment and order. Muriel having now reached the age which entitles her to nominate some suitable person to be her guardian, her wishes as to which of her parents, each being suitable, should have her custody should, we think, be respected by the court, in view of her manifest intelligence as disclosed by her testimony. Such being the rule governing this class of cases, it would neither be proper nor right as against her wishes upon .a re-trial of .the issues to take her from her mother, and Eric, under the rule laid down by this court in Jones et ux. v. Bowman, ought not to be separated from her and his mother. There is, therefore, nothing to be retried. Upon the facts the plaintiff in error was and is entitled to the custody of the minor children, and the defendant in error is entitled to see and visit them at all reasonable times.
For the reasons above stated the judgment is reversed and the case is remanded to the District Court of Sweet-water County with directions to enter judgment in accordance with the views herein expressed. Reversed.