Hovey v. Morris

7 Blackf. 559, 1845 Ind. LEXIS 126

• Court: Indiana Supreme Court
• Decided: December 8, 1845
• Status: Published

Opinion

Blackford, J.

— This was a writ of habeas corpus, issued by the Carroll Circuit Court, on the petition of Austin TV. Morris. The petition states that the petitioner is the guardian of the person and property of Caroline Morris, an infant of about the age of ten years; that she is the daughter of Milton M. Morris, deceased, and his wife Abigail, who has, since her said husband’s death, married Lorenzo D. Hovey; that the said infant is, by the said Lorenzo and his said wife Abigail, illegally restrained of her liberty, and detained from the custody of the petitioner in the county of Carroll. The petition was sworn to. The writ of habeas corpus was directed to the said Lorenzo D. Hovey and Abigail his wife, &c., and was returnable to the Court on the 25th of April, 1845. The defendants, in obedience to the writ, brought the infant into Court, and demurred to the petition. The demurrer was overruled; and the defendants refusing to withdraw the demurrer and answer the petition, the Court ordered the infant to be delivered to the petitioner.

The defendants, instead of demurring to the petition, should have moved to quash the writ of habeas corpus, on the ground of the alleged insufficiency of the petition. But the form of the proceeding is not now material. The question raised by either course is the same, viz., was sufficient cause shown to authorize the issuing of the writ ? That question was decided in the affirmative; and the defendants showing no cause for detaining the infant, she was delivered to her guardian.

A. L. Robinsoyi, for the plaintiffs. H. P. Biddle, for the defendant.

As the facts stated by the petition are admitted by the demurrer, we see no reason for objecting to the opinion of Court. After the second marriage of the mother, another person might be appointed guardian of the person of the infant, according to the act of 1843. R. S. 1843, p. 608. The petitioner alleges himself to be the guardian of the person and property of the infant, which allegation can only mean, that he is the legally appointed guardian of her person and property.

The defendants rely on the statute of January the 13th, 1845, entitled “ An act for the relief of Abigail C. Hovey and Lorenzo D. Hovey of Carroll county.” Supposing that act to be a public one (it not having been pleaded), and that the same is constitutional, of which we give no opinion, still it cannot benefit the defendants in this proceeding in the Circuit Court; it not being shown by them that they had given security to the satisfaction of the Probate Court, that the infant should be clothed, and educated, and reared in a becoming manner. Local Laws, 1845, p. 97.

Per Cziriam.

— The judgment is affirmed with costs.