99 Mo. 484 | Mo. | 1889
The issues in this case arise upon the return of the respondent to a writ of habeas corpus issued by Sherwood, J., on the ninth day of September, 1889, returnable to the supreme" court at the October term thereof. By which the petitioners who are husband and wife and the maternal grandparents of Louise Marley, an infant aged six years on the sixth day of May,last past, seek to recover the custody of said infant from the respondent, who is the father of said infant, and who on the same day, before W. D. Hubbard, judge of the circuit court within and for Greene county, on writ of habeas corpus had theretofore recovered the said infant from the custody of the petitioners.
The parties to this suit and to that before Judge Hubbard are the same. The state of facts on the same day and almost within the same hour within which that adjudication was had, and this writ was issued, are the same. The facts stated in the return of the petitioners to the writ of Judge Hubbard, and those stated by
Treating this case for the present as a normal one, in which a party, charged to be illegally restrained of his liberty, and for whose relief a writ of habeas corpus is the appropriate remedy, and who has by such writ been discharged from that restraint by a tribunal competent to so discharge him, is such discharge final and conclusive ? That the doctrine of res adjudicata, is not applicable to the case of a refusal to discharge, and that the prisoner is entitled to the opinion of all the courts or officers authorized in a given cause to issue the writ as to the legality of his imprisonment, is conceded, and is not limited in this state by statutory enactment, except in the one particular that the applicant for the writ in his petition must state “that no application has been made or refused by any court officer or officer superior to the one to whom the petition is presented.” Subject to this limitation one restrained of his liberty may in succession apply to every court or officer authorized to issue the writ, notwithstanding another court or officer having jurisdiction may have refused to issue it or to discharge him from such restraint, ‘ ‘ and from such refusal no appeals will lie,” as was held in Howe v. State, 9 Mo. 682. The reason assigned in that case being that “ the refusal to grant a discharge is not a final judgment from which an appeal will lie to this court,” and in Ferguson v. Ferguson et al., 36 Mo. 197, where an order had been made by the circuit court discharging one child from and remanding two other children into the custody of the father, on a writ issued upon the petition of the
From these cases may be deduced the doctrine that the principle of res adjudícala does not'apply in cases of habeas corpus.to judgments remanding the prisoner, or to judgments discharging the prisoner, where a new state of facts, warranting his restraint, is shown to exist different from that which existed at the time the first judgment was rendered. That it does apply to a judgment discharging the prisoner, where no such new state of facts is shown, may as readily be deduced from the case Ex parte Jilz, 64 Mo. 205. The distinction thus made between judgments remanding, and those discharging the prisoner, grows out of the nature of the writ whose raison d etre is the protection of personal liberty.
It loses none of its characteristics when used for the purpose of obtaining the custody of children, and the same analogies ought to obtain in such cases as when used simply for the purpose of discharging a prisoner from illegal restraint. If this be so, then the judgment of a court or officer of competent jurisdiction, discharging the infant in this case from the custody of the petitioners on the ninth day of September, 1889, on writ of habeas corpus, ought to be a complete answer to their petition, presented on the same day to another
The serious objection to the conclusiveness of a-judgment on habeas corpus■ in such causes would be. removed by a provision for review by appeal or writ of error. It would seem that such provision has been made by statute in some of the states. Church on
The mother of the infant, Louise (Julia Marley), died in the city of Oswego, Kansas, on Monday, the tenth day of June, 1883, when the child was five weeks old. The petitioners and respondent were both living in that city at the time, and the kindest and most affectionate relations existed between both parties and their families. She died at the home of the respondent’s father, with whom the respondent and his wife were living at the time, and where the petitioners were also in attendance upon her. The petitioner, Mrs. Weir, testifies that three days before she died, she told her that she "wanted to have a talk with her husband, and that she said she wanted to tell him, among other things, that she wanted Mrs. Weir to raise the baby; that, just before she died, when the parties were by her bedside, she, Mrs. Weir, having kissed her daughter, her daughter said, “This means something,” when Mrs.
On the other side, the respondent denied that any such conversations took place, testified that Mrs. Weir appealed to her daughter to give her the child on the night of her death, but that her daughter made no response, nor did he. The testimony of the other witnesses, who were in attendance upon her that night, tended to support the testimony of the respondent, and the respondent introduced other evidence tending to prove that, in response to a request of Mrs. Weir, subsequently made to him, to give her the child, he gave a denial, and here ends the only material conflict in the .testimony. The child was taken to the home of the petitioners, was tenderly cared for and nursed by its grandparents through the ills incident to childhood, with the consent of the father, and remained with them almost continuously until about the twenty-seventh of April, 1889. In the meantime, the petitioners had removed from' Oswego to Springfield, Missouri, and the respondent had married again. At the date last aforesaid, Louise was taken to her father’s home, at Oswego, remained a time, returned to Springfield, remained a short time at the home of her grandparents, returned
The petitioner, Dr. Weir, is a physician, aged about fifty years, in comfortable circumstances, with a large and increasing practice, a pleasant home, a refined and cultured family, consisting of his wife, aged about forty-five years, two daughters, aged respectively, about twenty-three and twenty years, and two sons, about nineteen and fifteen years, and the aged mother of Mrs. Weir, of about eighty years. The respondent is a banker, aged about thirty-six years, in comfortable circumstances, of exemplary character and habits, and bright prospects, has a pleasant home; his family consisting of his father, a retired banker, aged about sixty years, and his wife, aged about twenty-six years, to whom he has been married about two years and a half, and by whom he has no child; his wife is a refined, cultured and affectionate lady. The parties and their families, before this controversy, entertained for. each other the kindest feelings, and have, at all times, treated each other with the greatest cordiality and respect, and since, with such consideration as speaks volumes in their favor. The glimpse which the evidence gives us into these two erstwhile and now, save for this unfortunate controversy, happy homes, leaves no doubt in our minds that Louise would find a congenial and happy home in either, to the members of each of which she seems warmly attached, and by whom the attachment is as warmly reciprocated.
An analysis of the many cases to which we have been cited by counsel serves only to confirm in our j udgment the correctness of the ruling of this court in the case of Berenice Scarritt, 76 Mo. 565. That a father ■cannot by contract, other than such as are provided for by statute, confer upon another irrevocably and absolutely as against himself a right to the custody of his minor child; that notwithstanding any such contract, upon habeas corpus for the custody of such child, the custody will be awarded to the father, unless the welfare of the child demands that it should remain in, or be restored to, the custody of the person with whom it was placed by the father under such contract, or that some other disposition be made of it. Such a contract is not to be entirely ignored. It is to be considered, not for hhe purpose of fixing the rights of the parties, but for the purpose of shedding light upon their actual relations and feelings toward the infant and assisting the exercise of a wise discretion by the court, as to what disposition should be made of it for the promotion of its own welfare. What is for the best interest of the infant is the question upon which all the cases turn, at last, whatever may be said in the opinions about contracts, and the answer returned, is that the custody of the child is by law with the father, unless it appears by satisfactory evidence that the best interest of the child demands that he should be deprived of that custody, and upon him, who so avers, devolves the burden of proof. The presumptions are against it. State v. Libby, 44 N. H. 321; Chapsky v. Wood, 26 Kansas, 650; U. S. v. Green, 3 Mason, 482; Hurd on Habeas Corpus, sec. 537; Jones v. Darnall, 103 lnd. 569; Brooke v. Logan,
And no well-considered case will be found where the custody of a -minor child was by habeas corpus taken from the father and given to another, upon the sole-ground that the legal right of the father had- passed to and vested in such other person by parol contract, and yet upon this ground alone, in the light of all the evidence, we are asked to take this child from its father and give it to the petitioners; for it is impossible to see from the evidence that the interests of the child will be-better promoted by awarding its custody to the grandparents, than it would be, if such custody was awarded to the father. In such case the presumption of the law must obtain, that it is to the interest of the child to be in the custody of its father. The said Louise Marley will, therefore, be remanded to the, custody of the respondent.