Bleakley v. Barclay

89 P. 906, 75 Kan. 462, 1907 Kan. LEXIS 87

• Court: Supreme Court of Kansas
• Decided: April 6, 1907
• Docket: No. 14,866
• Status: Published

Opinion

The opinion of the court was delivered by

Porter, J.:

Before considering the errors assigned some additional facts in the history of the case should be noted.

From the transcript of the proceedings in Illinois it appears that the petition there was filed on May 26, 1905. At that time the child, Edith, was fifteen months old. It also appears that the Barclays, who were temporarily residing in St. Louis during the exposition in 1904, where James G. Barclay was in charge of an exhibit, first saw the child at the baby-incubator concession. They learned that it had been placed in charge of the incubator people in the month of April, 1904, under the name of Edith Brown, by a midwife in St. Louis. They were informed by this midwife that Charlotte E. Bleakley, who resided in Lawrence, Kan., was the mother of the child, and that it was born February 15, 1904. They procured the assistance of an attorney to secure adoption papers. The following excerpt from the opinion of Judge Graves, based upon the evidence in the Illinois case, is also pertinent:

“In this case the testimony shows that the mother, driven desperate by the attempts of her husband to destroy the life of the unborn child, which conduct had been persisted in and was still being persisted in to the extent that the mother feared that her own life would pay the penalty of such unnatural opposition on the part of the father to the birth of an heir, left her home in Lawrence, Kan., made her way to the city of St. Louis, where after the lapse of a short time she gave premature birth to a child. Whether the premature birth was in fact the result of the means adopted by her husband to destroy it at an earlier date the evidence does not disclose; but, in any event, the child was born prematurely, and when coming out from under the influence of chloroform administered to the mother at that time a child, was placed across her arm, and she was told that it was her child and that it was dead. She paid for its funeral expenses, including coffin and grave. She afterward heard rumors that the midwife had said that her child was alive, and on investigation into the rumors by her brother the midwife again reiterated the fact that the child was dead; and, believing that statement to be true, after a lingering illness the mother returned to her home in Lawrence, Kan. Months afterward, and while she still believed her child was dead, she was approached and requested to sign a deed of adoption, which she was finally prevailed upon to do, upon the condition only that it should be placed in the hands of her father-in-law, to be taken by him to St. Louis, and not to be delivered by him until he had made full investigation, and, as she testifies, was not to be given up if the child sought to be adopted was in fact her child; and according to the testimony of the father-in-law it was not to be given up unless he was satisfied that it was not her child. Whether or not the father-in-law acted in good faith there is nothing in this record to show; in any event, he delivered up the deed of, adoption to Mrs. Barclay, and returned to Lawrence, Kan., and reported to the mother, the relator in this case, that it was not her child but that the adoption papers were merely a means by which Mr. and Mrs. Barclay were to be aided in rescuing from the hands of the midwife some child of unknown parentage. . . . She afterward became satisfied that the child in question was hers, and seeks to reclaim it and to revoke all such part as she took in the means by which the custody of that child was surrendered to the Barclays. Nobody has challenged the fact that at the time she wrote those letters and signed this so-called deed of adoption she honestly and bona fide believed that her child was dead, and truly believed the statement she swore to as to the reason why she signed that paper and wrote those letters.

“It seems to me if there ever was a case in which the terms of the contract ought not to be enforced against a natural parent this is the case, and that, too, even though the authorities- were' believed to support the making of enforceable contracts of that character. . . . The relator, I am satisfied, is the mother of the child. Her child was born on the 15th day of February, in the house of the midwife, Mrs. Merri-field, in St. Louis, Mo. This child was born on that day in that house. The daughter of the relator was tiny and blonde; this child was the same. Her child was of premature birth; so was this child. Some expert testimony was offered in this case on the question whether a child of six months’ gestation could live outside of an incubator; and it has been urged from that testimony that this is not the child of the relator, but it must be borne in mind that there is no evidence whether the child of the relator was of six months’ gestation or more. Mrs. Merrifield told the relator her child was dead; she told Dr. Burford' it was alive; she told Mr. Thompson it was dead. She put this child in charge of the managers of the incubator company at the World’s Fair, and told those people it was the child of the relator; she told Mrs. Barclay the child was the relator’s, and where the relator lived.”

The various assignments of error are all predicated upon the force and effect of the Illinois judgment. If that judgment is res judicata the motion to quash should have been allowed, provided it sufficiently appeared by the petition for the writ that a court of competent jurisdiction had decided the cause of action adversely to the petitioners. Obviously the petition was drawn upon the theory that the averments to the effect that the Illinois judgment was obtained by means of perjured testimony permitted a collateral attack upon the judgment. It recites the name of the Illinois court and declares that it is a court of competent jurisdiction; it alleges that the respondent obtained a judgment of that court awarding her the custody of the child, and the only excuse alleged for invoking the aid of the Kansas court is that the respondent procured the judgment by false and perjured testimony. But fraud only inheres in the judgment when it affects the jurisdiction; no other fraud can be relied upon in a collateral attack. It is conceded that the Illinois court had jurisdiction of the parties and'of the subject-matter. Fraud is no ground for an attack by a party to the judgment. This is elementary. Third parties may impeach a judgment collaterally, because they are not bound by it.

“Judgments of any court can be impeached by strangers to them for fraud or collusion; but no judgment can be impeached for fraud by a party or privy to it.” (2 Freeman, Judg. § 334. See, also, Field et al. v. Sanderson’s Adm’x, 34 Mo. 542, 86 Am. Dec. 124; Greene v. Greene, 68 Mass. 361, 61 Am. Dec. 454; El Capitan Land & Cattle Co. v. Lees [N. M.], 86 Pac. 924.)

In Peck v. Woodbridge, 3 Day (Conn.) 30, false testimony and forgery were alleged as grounds to impeach the former judgment, but the foregoing rule was enforced because it was said to be necessary to the administration of justice that when a case is once finally decided it must be held to end the litigation between the parties. The consequences of permitting such an attack are apparent when we consider that if the Barclays could, in this proceeding, set aside the former judgment for the reason that it was obtained by means of perjured testimony, it must follow that the respondent would be entitled in still another proceeding to set up the same, grounds to defeat the judgment in this.

“The parties to an action cannot impeach or set at naught the judgment in any collateral proceeding on the ground that it was obtained through fraud or collusion. It is their business to see that it is not so obtained.” (2 Freeman, Judg., § 334. See, also, Dilling v. Murray, 6 Ind. 324, 63 Am. Dec. 385; Boston and Worcester Railroad Corporation v. Sparhawk & Wife, 83 Mass. 448, 79 Am. Dec. 751; Pico v. Cohn, 91 Cal. 129, 25 Pac. 970, 27 Pac. 537, 13 L. R. A. 336, 25 Am. St. Rep. 159; United States v. Throckmorton, 98 U. S. 61, 25 L. Ed. 93.)

All courts are likely to be deceived by perjured testimony, and to permit a defeated party to go to another court — foreign or domestic — and procure a retrial of the same issues on the ground that the successful party had fraudulently procured the former judgment upon false testimony would make litigation endless and judgments as unsubstantial as the stuff that dreams are made. of.

The respondent objected to the introduction of any testimony under the pleadings, on the ground that all the issues had been determined by the Illinois judgment. This was overruled, the court holding that the question of motherhood was not an issue in the former proceeding and that the only question involved was the validity of the deed of adoption. It is one of the principal contentions of the petitioners that the motherhood of the child was not an issue in the former proceeding, but was excluded therefrom by a ruling of the court in Illinois. It appears that the Barclays, after setting up the deed of adoption executed by Mrs. Bleakley as the mother, attempted in another allegation of the return to deny that she is the child’s mother, and a motion to strike out the latter allegation as inconsistent with the former was allowed. It therefore becomes necessary to inquire whether the motherhood of this child was determined by the Illinois court. It is elementary that the judgment rendered-and not the opinion must be looked to in order to find the thing adjudged. The reasoning of the court forms no part of the judgment. (Hopper v. Arnold, 74 Kan. 250, 86 Pac. 469.) At the same time, the inquiry is not always confined to the formal issues as defined by the pleadings, nor to the formal parts of the judgment. In Redden v. Metzger, 46 Kan. 285, 289, 26 Pac. 689, 26 Am. St. Rep. 97, the following language from Burlen v. Shannon, 99 Mass. 200, 96 Am. Dec. 733, is quoted with approval:

“The estoppel is not confined to the judgment, but extends to all facts involved in it as necessary steps or the groundwork upon which it must have been founded. It is allowable to reason back from a judgment to the basis on which it stands, ‘upon the obvious principle that, where a conclusion is indisputable and could have been drawn only from certain premises, the premises are equally indisputable with the conclusion.’ ” (See, also, Bank v. Rude, Adm’x, 23 Kan. 143; Whitaker v. Hawley, 30 Kan. 317, 1 Pac. 508; Shepard v. Stockham, 45 Kan. 244, 25 Pac. 559.)

Mrs. Bleakley’s petition for the writ alleged that she was the child’s mother. The return and answer alleged that as the mother she had executed a deed of adoption. The court, by striking out as inconsistent the allegation that she was not the mother, held that the other allegations admitted the contrary to be true. At the close of the evidence the Barclays filed'a motion for judgment, on the ground, among others, that “it is not shown that the said infant is the child of the relator,” recognizing clearly that the motherhood of the child was involved as a primary fact. The court denied this motion, and after holding the deed of adoption void for the reason that it did not conform to the laws in relation to the adoption of children in force in Illinois, where the Barclays resided when they executed it, nor to those in force in Missouri, where the child was at the time, nor to the laws of Kansas, where the mother of the child resided when she executed it, also made as a part of the judgment the following:

“The court further finds that the said Edith Bleak-ley is the daughter of the said Charlotte E. Bleakley and J. J. Bleakley, .and that she was born on the 15th day of February, A. D. 1904.”

It is said in volume 2 of the second edition of Black on Judgments, section 614:

“The doctrine of res judicata does not rest upon the fact that a particular proposition has been affirmed and denied in the pleadings, but upon the fact that it has been fully and fairly investigated and tried —that the parties have had an adequate opportunity to say and prove all that they can in relation to it, that the minds of court and jury have been brought to bear upon it, and so it has been solemnly and finally adjudicated. . . . For these reasons, the more correct doctrine is that the estoppel covers the point which was actually litigated, and which actually determined the verdict or finding, whether it was sta-tedly and technically in issue or not.”

How can it be said that the fact that respondent is the mother was not essential to that part of the judgment holding the deed of adoption void because it failed to comply with the laws of Kansas, where the mother of the child resided, or that, in determining the invalidity of the deed, the mind of the court was not brought to bear upon it so that it has been judicially decided? In addition, there is the adjudication in the judgment itself that Mrs. Bleakley is the child’s mother. True, it was not presented by the pleadings as an issue in the sense of being affirmed on the one side and denied on the other, for the Barclays admitted it by seeking to establish their claims upon the basis of its truth. They claimed through and under Mrs. Bleakley as the mother, and cannot now, after submitting their claims upon that theory, be permitted to set up the contrary.

“It is not necessary to the conclusiveness of the former judgment that issue should have been taken upon the precise point which it is proposed to controvert in the collateral action. It is sufficient if that point was essential to the former judgment.” (Lee v. Kingsbury, 13 Tex. 68, 71, 62 Am. Dec. 546.)

The contention of the Barclays that the deed of adoption was valid could only have been sustained upon the theory that it was executed by the mother. On the other hand, the judgment in favor of Mrs. Bleakley could not have been rested upon any other ground than that her claim to be the child’s mother was found by the court to be true. Within the rule approved in Redden v. Metzger, 46 Kan. 285, 26 Pac. 689, 26 Am. St. Rep. 97, it is apparent that by reasoning back from the judgment to the basis on which it stands we find the judgment could only be based upon the premise of motherhood, and this premise is as much a thing adjudicated as the conclusion itself. We have no hesitation in reaching the conclusion that the question of motherhood was inseparably interwoven with the proceedings in Illinois and was judicially determined therein. The action of that court in allowing the motion to strike out inconsistent allegations in the return did not have the effect which is now claimed. The ground upon which relief is sought in this proceeding is that Mrs. Bleakley procured that judgment by falsely swearing to a fact which it is how said was never in issue.

The petitioners contend that the decree of the Illinois court did not deprive the Kansas court of jurisdiction to hear and determine another habeas corpus proceeding, for the reason that the record discloses a change in the situation and conditions surrounding the child from what was disclosed to the Illinois court. The changed conditions which it is argued are sufficient to warrant the interference of the Kansas court are said to consist of certain facts which it is urged are disclosed for the first time upon the trial of this case, and which it is claimed establish beyond question that the respondent is a perjurer and an abortionist, and therefore morally unfit to have the custody of the child. These facts, it is argued, make it the solemn duty of the Kansas courts to take the child from her and give it to the petitioners. The charge of perjury is based upon the claim that she is not the child’s mother, and that therefore her testimony in Illinois was false.

The respondent brings up none of the evidence, and, while it is true that the petitioners are entitled to every presumption that the evidence was sufficient to support the judgment, that presumption only goes to the extent of covering such facts as the pleadings would warrant evidence upon. There is no inference from the judgment that there was evidence that Mrs. Bleakley is or ever was an abortionist. We would have as much right to infer from the judgment that she was an ex-convict or a shoplifter; for there is no word or charge in the pleadings intimating that she is or ever has been guilty of any immoral conduct, except the allegation that on the former trial she committed perjury. It must be observed that even this charge was not made for the purpose of showing a change in the conditions surrounding the child, but solely for the purpose of furnishing grounds upon which to attack the validity of the former judgment. If Mrs. Bleakley is the mother, then she was not guilty of perjury or abortion; so that the charges of immorality are interwoven with the question whether in fact she is the mother, which we have seen was decided in her favor.

But there is a stronger reason why this contention of petitioners must fail. The petition is not predicated in any sense upon a change in the situation or conditions surrounding the infant. It is silent with respect to all such matters. To permit the petitioners to bring an action of this character, based upon one theory, and, failing thereon, tb obtain a decree awarding them the custody upon a finding of the court that the welfare and best interests of the child require it, .lacks the elements of fairness and equity and encourages suits in the nature of reprisals.

In awarding the custody of this child to the woman he believed from the evidence to be its mother the learned judge who presided in the Illinois case was not unmindful of the grave responsibilities which always rest upon the chancellor in deciding questions of this character. It requires no reading between the lines to discover that the welfare and best interests of the little child were held above the rights of the conflicting claimants, and kept constantly in view. The opinion itself sparkles with feeling and with expression of paternal affection and tenderness for helpless children. At one place the judge observed that if it were possible he would take the child from both contestants and keep it himself. We quote further from the opinion:

“In determining this case I am not unmindful that whatever may be said or done in the performance of-this duty must of necessity entail upon one side or the other the deepest anguish. The love of children is one of the few divine attributes possessed by the human race; the man or woman who is without it is abnormal; those who have once known it have been made partakers to a degree of the joys of the world to come, and those who have had the object of that love torn from their arms by the bony hand of fate have truly felt the fire unquenchable. It.is only those who have never experienced the love of children who can perform a duty like the one here presented without the deepest regret, appreciating how sore the wound will be that of necessity must be inflicted.

“But this case cannot be decided upon sympathy. The law, as applied to the facts, as I am able to understand both, must govern. . . . Believing as I do that the deed of adoption has no legal binding force ■or effect, either in this or any other state, and that ■contracts for the surrender by the natural parents to strangers of the custody of minor children are not sanctioned by the weight of authority in this country, and that in this particular case the contract itself ought not, as a matter of right, to be enforced, there remains but one thing to determine, and that is: What is for the best interest of this child? Should it be allowed to remain in the custody of the respondents? Or, should it be turned over to the custody of the mother? ... So far as is shown by the evidence, there is no considerable difference between the relator and the respondents, either in the matter of morals, education or social or financial standing; each express, and I have no doubt entertain, great affection for the child.”

The judgment finds that Mrs. Bleakley is a fit and proper person to have the care of the child and as its mother is entitled thereto, and awards her its custody.

Having determined that the former judgment cannot be attacked on the ground of fraud in obtaining it by means of false testimony, that the question of the motherhood of the child was determined by that judgment, and that the judgment also found Mrs. Bleakley to be a suitable person to have, and that she is entitled to, the child’s custody, there remains the single qüestion, What effect shall be given here to that judgment? This question can have but one answer. Section 1 of article 4 of the constitution of the United States requires that full faith and credit be given to the judgments of sister states. This court will take judicial notice that the circuit court of Illinois is a superior court of general original jurisdiction. (Butcher v. The Bank of Brownsville, 2 Kan. 70, 83 Am. Dec. 446; Dodge v. Coffin, 15 Kan. 277; Poll v. Hicks, 67 Kan. 191, 72 Pac. 847.) A judgment of a superior court of one state must be given the same effect in all respects in another state as in the state where it was rendered. (Barnes & Drake v. Gibbs et al., 31 N. J. Law, 317, 86 Am. Dec. 210; Cook v. Thornhill, 13 Tex. 293, 65 Am. Dec. 63; Bank of North America v. Wheeler, 28 Conn. 433, 73 Am. Dec. 683; Ambler v. Whipple, 139 Ill. 311, 28 N. E. 841, 32 Am. St. Rep. 202, and note; Welch et al. v. Sykes, 8 Ill. 197, 44 Am. Dec. 689; Renaud v. Abbott, 116 U. S. 277, 6 Sup. Ct. 1194, 29 L. Ed. 629.) The full faith and credit which must be given is the same faith and credit accorded the judgment in the state where it was recorded. In the recent case of Haddock v. Haddock, 201 U. S. 562, 26 Sup. Ct. 525, 50 L. Ed. 867, it was said:

“The requirement of the constitution is not that some, but that full, faith and credit shall be given by states to the judicial decrees of other states. That is to say, where a decree rendered in one state is embraced by the full faith and credit clause that constitutional provision commands that the other states shall give to the decree the force and effect to which it was entitled in the state where rendered. Harding v. Harding, 198 U. S. 317, 25 Sup. Ct. 679, 49 L. Ed. 1066.” (Page 567.)

A judgment of a sister state rendered by a court of competent jurisdiction having jurisdiction of the parties and the subject-matter will be given in this state the same force and effect to which it is entitled in the state where it was rendered. In the absence of proof as to the force and effect which the former judgment would be entitled to receive in the courts of Illinois we assume that the law there is the same as here. Here the judgment would be res judicata.

When this case was before the court in Bleakley v. Smart, 74 Kan. 476, 87 Pac. 76, the question was whether a judgment in habeas corpus for the custody of a child is appealable; and it was held that an appeal will lie, and incidentally that a judgment in a proceeding of this kind is res judicata. The petitioners contend, however, that a judgment in habeas corpus for the custody of a child is not res judicata, and rely upon the case of In re King, 66 Kan. 695, 72 Pac. 263, 67 L. R. A. 783, 97 Am. St. Rep. 399. In Bleakley v. Smart, supra, it was said, however, that the decision in In re King is not in conflict with the doctrine declared in the case of In re Hamilton, 66 Kan. 754, 71 Pac. 817, nor opposed to the following statement of the law in volume 1 of the fourth edition of Freeman on Judgments, section 324:

“The principle of res judicata is also applicable to proceedings on habeas corpus, so far at least as they involve an inquiry into and a determination of the rights, of conflicting claimants to the custody of minor children.”

We are satisfied that the weight of authority and sound reasoning supports the doctrine that where the rights of conflicting claimants to the custody of a child are involved and determined in habeas corpus proceedings the judgment is binding and conclusive, and bars subsequent proceedings by the same parties upon the same -state of facts. (To the same effect see Cormack v. Marshall, 211 Ill. 519, 71 N. E. 1077, 67 L. R. A. 787, and Mahon v. The People, 218 Ill. 171, 75 N. E. 768.) The trial court erred in refusing to give to the Illinois judgment the faith and credit required by the constitution and the laws made in pursuance thereof.

Two minor contentions of petitioners will be noticed. The first is that after issues have been fully joined and judgment has been rendered on a trial a party cannot be heard to urge in this court on appeal error in denying a motion to quash. A motion to quash amounts to the same thing as a demurrer to the petition. The first two authorities cited by petitioners, U. P. Rly. Co. v. Estes, 37 Kan. 229, 15 Pac. 157, and Goodrich v. Comm’rs of Atchison Co., 47 Kan. 355, 27 Pac. 1006, 18 L. R. A. 113, expressly decide that where a demurrer to a petition is overruled the defendant may save his exceptions, answer, raise the same defense by objection to the reception of evidence, and, if this be overruled, except, and, in this court on appeal, question the error in either ruling. The other case cited, Bank of Santa Fe v. Haskell Co. Bank, 54 Kan. 375, 38 Pac. 485, is not in point.,

It is also urged that since the record does not contain the evidence error cannot be predicated on the overruling of the demurrer to the evidence. This is of no consequence, because respondent raised all the questions of law involved herein by the motion to quash and the objection to any evidence. The other assignment is merely stating in a different form that no evidence should have been received. It follows, therefore, that the respondent was entitled to judgment upon the motion to quash, and that no evidence was proper under the pleadings.

The judgment is reversed and the cause remanded, with directions to enter judgment for the respondent for costs.