165 Ind. 332 | Ind. | 1905
This was a proceeding by appellant againát appellee for a writ of habeas corpus to obtain the custody of a child.
The petition presented for the writ shows, among other things, substantially the following facts: The petitioner and the respondent are husband and wife, living separate and apart, and are the parents of the child in controversy, Mary Frances Laura Willis, of the age of two years. This
The appeal was perfected. Within fifteen days after the making of the above order said Hattie B. Willis took said child to Ladoga, Montgomery county, Indiana, where it is now under her custody and charge. Prayer for a writ of habeas corpus, and that on the hearing of the petition the possession, care and custody of the child be given to the petitioner. The petition was duly verified, and thereon a writ of habeas corpus was issued. Respondent appeared in court, and,' through her counsel, moved to quash the writ for insufficiency of the facts alleged in the petition. This motion, over petitioner’s exception and objection, was sustained, and judgment was rendered against him for costs. Erom this judgment he appeals, and assigns that the court erred in sustaining the motion to quash the writ of habeas corpus.
Neither of the above propositions, as advanced by appellant’s learned counsel, is tenable. Under the laws of this State there certainly are no sufficient grounds or reasons to sustain the first proposition. The fact that appellant, as shown, filed an appeal bond, and appealed to the Supreme Court, from the judgment in the former habeas corpus proceedings, did not operate to give him the right over the judgment, to retain the custody of the infant child during the pendency of the appeal in controversy.
It is true that §650 Burns 1901, §638 E. S. 1881, in respect to a term-time appeal, provides: “When an appeal is taken during the term at which judgment is rendered, it shall operate as a stay of all further proceedings on the judgment, upon an appeal bond being filed by the appellant, with such penalty and surety as the court shall approve, and within such time as it shall direct, payable to the appellee, with condition that he [appellant] will duly prosecute his appeal and abide by it and pay the judgment and costs which may be rendered or affirmed against him.” This section contains further provisions in regard to the condition of such appeal bond, where the appeal is taken from a judgment for the recovery of real property or the possession thereof, or from a judgment for the return of personal property, etc. The effect of this section has been considered by this court in several cases.
In Padgett v. State (1884), 93 Ind. 396, it was held that
Walls v. Palmer (1878), 64 Ind. 493, was an appeal from a judgment suspending an attorney from the practice of law. It was held in that case that the appellant, by appealing from such judgment and procuring a supersedeas or stay of proceeding, was not thereby restored to his rights as an attorney and counselor at law during the pendency of the appeal to this court. It was therein held that such judgment was self-executing, and the only effect of the supersedeas was to stay an execution upon the judgment to enforce the collection of costs. .
Randles v. Randles (1879), 67 Ind. 434, was an appeal from a judgment in an action for partition of land. The appeal was taken in term time, and granted upon filing an appeal bond. This court in that case held that the only effect of the appeal upon the judgment in question was to stay execution thereon for costs until the termination of the appeal; that in all other respects the judgment until reversed or annulled was binding on the parties thereto as to every question therein decided.
In Central Union Tel. Co. v. State, ex rel. (1887), 110 Ind. 203, this court, in considering the effect of an appeal, said, by Elliott, I.: “The effect of a supersedeas is to restrain the appellee from taking affirmative action to enforce his decree, but it does not authorize the appellant to
An appeal from a decree awarding an injunction does not vacate the injunction,- nor authorize its disobedience^ The decree is effective and must be obeyed until reversed. Hawkins v. State (1890), 126 Ind. 294.
In Graves v. Maguire (1837), 6 Paige Oh. 379, the chancellor, in considering the condition of the judgment after an appeal, said: “The effect of an appeal, after the proper steps have been taken to render it a stay of proceedings upon the order or decree appealed from, is to leave the proceedings in the same situation as they were at the time of perfecting such appeal, but not as they were before the order or decree appealed from was entered.”
It is said by this court in Carver v. Carver (1888), 115 Ind. 539 : “It was not possible to institute any proceeding
To accord to the stay of proceedings in the case in controversy the force and effect for which appellant contends would be to confer upon him a right, i. e., to retain the care and custody of the child during the pendency of the appeal, and would result in making a stay of proceedings a remedy granting an' affirmative right, rather than a preventive order or writ. Elliott, App. Proc., §§391, 392.
Counsel for appellant relies -upon the decision of this court in Garner v. Gordon (1872), 41 Ind. 92, 108. That was a proceeding by a writ of habeas corpus to obtain the custody of minor children. The custody of the children in that case was by the trial court awarded to the petitioner. Erom this judgment the respondent appealed in term time to this court, and filed an appeal bond which was approved by the court. It is held in that case that the effect of the appeal operated to stay the proceedings on the judgment, and that thereby the appellant was entitled to the custody of the children pending the appeal. The only authority relied upon by the court to sustain the holding was §555 of the civil code of 1852. 2 G-. & H., p. 271. This section, as does §650 Burns 1901, §638 R. S. 1881, provides for a term-time appeal by filing an appeal bond by the appellant. An examination of the case discloses that the question did not receive careful consideration by the court, and the holding upon the point in controversy is wholly at variance with the later decisions to which we have herein referred. That case upon the point in question is therefore overruled.
The record discloses no error, and the judgment is therefore affirmed.