Jones v. Bowman

67 L.R.A. 860, 77 P. 439, 13 Wyo. 79, 1904 Wyo. LEXIS 24

• Court: Wyoming Supreme Court
• Decided: July 6, 1904
• Status: Published

Opinion

Knight, Justicr.

The defendant in error, Margaret Bowman, plaintiff below, under the habeas corpus act by petition alleged that Ida May Bowman, at that time, May, 1900, of the age of five years, was unlawfully restrained of her liberty by J. A. Jones and Ella Jones, plaintiffs in error here, at their residence in the town of Buffalo, in Johnson County, Wyoming, without legal justification, they having caused said Ida May Bowman to be forcibly abducted and spirited away from said petitioner, Margaret Bowman, in the City of St. Paul, Minnesota, on or about February 15th, 1900, said petitioner being at the time the qualified and acting guardian of said Ida May Bowman, an orphan, and the child of her brother, John J. Bowman, who on his death bed gave said child into her charge, and that subsequently and within a few days thereafter said petitioner was duly appointed the guardian of said child by the Probate Court of Ramsey County, State of Minnesota. ■

In obedience to a writ of habeas corpus, the defendants there, John A. Jones and Ella Jones, his wife, brought the child, Ida May Bowman, into the District Court of Johnson County, Wyoming, where the testimony of witnesses then present and the depositions of others then absent was heard at great length, and the court found for the petitioner, Margaret Bowman, awarding to her the custody of said child, Ida May Bowman, and gave its judgment to that effect and for costs.

To that judgment plaintiffs in error, John A. Jones and Ella Jones, his wife, duly excepted and come here on error.

It seems to be necessary and proper to say to start with that it is evident throughout this case that most of the difficulties and disagreements have arisen from differences in religious opinions, and as the statutes of this state not only fail to make any distinction as to religious belief, but absolutely prohibit any distinction being made on account thereof, we cannot and will not give such evidence the slightest weight in our decision, which will be an attempt to decide what shall be best for the welfare of the child, Ida May Bowman, independent thereof, as we fully believe we are authorized to 'do by all the authorities when not otherwise directed by statute. We say this because in discussing the facts as shown it might without this statement appear that this unfortunate condition might have some consideration in our determination, especially since some reputable courts, by reason of local statutes, have considered such differences of religion.

The facts appear to be substantially as follows: John J. Bowman prior to his death on February 5th, 1900, had sought to remove the child, Ida May Bowman, from the care, control and influence of his sister, Margaret Bowman. Evidence of this fact is beyond dispute, and, prior to his death, he charged his son, Oscar, to carry out this wish. Immediately after the funeral the petitioner, Margaret H. Bowman, informed the boy, Oscar, that if he and the other relatives insisted on interfering with her care and custody of his sister, Ida May Bowman, she would take her away where he would not see her again, and he says that, believing she would keep her word good, and remembering his promise to his father, he took counsel of a witness produced by deposition and was told that the court should order otherwise ; he had as much right to care for his little sister as had her aunt; and on the 15th day of February he took the child to his mother’s sister and related to her his promise given his father, and the child was brought to Wyoming by another sister of the mother and he and a younger brother followed; and the plaintiff in error, Ella Jones, and her husband, J. A. Jones, are presented and declared to have illegally received the child and assisted her little brother, Oscar, in carrying out the wishes of his dead father, as he had promised to do.

On the 16th of February letters of guardianship were issued to Margaret H. B'owman out of the Probate Court of Ramsey County, Minnesota; but the child had been or was being taken out of the State of Minnesota when these letters of guardianship were issued. The father, John J. Bowman, just before his death, had requested one William F. Beck, who was his friend, to act as guardian of his three children, which included the little girl, Ida May, and the little boy, Oscar, in his distress, appealed to Mr. Beck, who, on the 14th day of February, 1900, filed his petition to be appointed the guardian of said Ida May Bowman and of her brothers, J. Oscar Bowman and Charles D. Bowman; and the brother, Oscar, testifies that, relying on this petition and upon the advice of the attorney, as above recited, he took the child to his aunt, his mother’s sister, as aforesaid. A letter from this little boy to his other aunt, the plaintiff in error here, explains her action in receiving the child, Ida May Bowman, and is in evidence:

“Drar Aunt Ella :■ — Papa died Monday morning. We buried him 5'esterday. Aunt Marguerite had all the money in the house and wouldn’t let us telegraph you. I went to work and Chas, to school and just got home about half an hour before he died. Just before I went to work Aunt Marguerite .went to get breakfast and I was left alone with papa. He asked me to remember what he had told me about taking care of Ida and said don’t let Aunt Marguerite bring her up. You know I do not wish it and mama wouldn’t like her to. I don’t know what to do. I must get her away from Aunt Marguerite and am going to ask Cousin Ida to take care of her. Cousin Eugene can get me a job I think. I haven’t made any plans yet, but I must have some one else appointed guardian. I may bring her out there. I wish you were here, for. I know mama would like you to have Ida. With love to all, I remain,

“Your nephew,

“Oscar Bowman,

“P. S. — Please excuse the pencil as I was in a hurry.

“2-8-1900. O. B.”

Upon receipt of the above letter, as shown by the evidence, and without information of any action of any court, the plaintiff in error, Ella Jones, proceeded to the assistance of the boy, Oscar, who had already interested his cousin, Ida Saunders, to take the child, Ida May, and save her from being taken where he could never see her again. It is not necessary to recount all that was done. The boy, Oscar, bravely kept his promise made his father and if any further wrong could be done him and his young sister than that already received in this case, it would be for this court to affirm the décision rendered herein and separate them, which we find the law will not permit us to do.

Margaret H. Bowman, who seeks the custody of this child, is by her own evidence without a home and entirely dependent upon her needle for support — a maiden lady past middle age — and she admits the possibility of her return to Pennsylvania. Upon reaching Wyoming with the child here in controversy, and her brothers, Oscar and Charles, having followed, plaintiff in error, John A. Jones, the husband of Ella Jones, the child’s aunt, was duly appointed guardian of the child, Ida May Bowman, by the District Court of Johnson County, Wyoming, and the evidence discloses him to be a man of means and willing and able to perform the duties thereof. The foregoing statement of facts by no means includes all, but it is sufficient to show that the. interest of the child, Ida May Bowman, should be the sole consideration here. And while other questions were raised by defendant in error in the brief, it was admitted that the sole question should be that above stated. The trial court seems to have been of the opinion that the action of the Probate Court in Ramsey County, Minnesota, where Margaret Bowman was appointed guardian of the child, Ida May Bowman, precluded the making of the appointment of John A. Jones as her guardian in his court after the child had been brought into the jurisdiction of his court, and at first that question was urged here, but the authorities do not support such a contention.

A leading case in point and one which calls attention to many others is found in 71 Mich., 180, and in that case the court say, among other things: “Guardians for infants may be appointed by the last will of the parent instead of hy the court, in which case the court will recognize their authority and their control of the ward so long as it is right and proper, and for the best interest of the ward. The powers of a testamentary guardian are just the same precisely as are those of a guardian appointed by the court, and are allowed to be exercised or withheld for the same reasons. Who shall or may be appointed guardian is within the discretion of the court. Relatives of the infant are usually s,elected, and those nearest of kin are usually preferred when otherwise competent, and as between those entitled the question to be determined in making the selection is, and always should be, what will be for the best interest of the ward under all the circumstances ? It should control everything else.” And again in the same case the court says: “Comity cannot be considered in a case like this, when the future welfare of the child is the vital question in the case. The good of the child is superior to all other considerations. It is the polar star to guide to the conclusion in all cases of infants, whether the question is raised upon a writ of habeas corpus or in a court of chancery.”

The Missouri Court of Appeals, in case In re Delaro, 37 Missouri Appeal Reports, 185, that .court says: “It has become a settled principle in the jurisprudence both of England and America that the interests of the child is the paramount consideration.” In Townsend v. Kendall, 4 Minn., 412, Justice Flandrau says: “When a foreign guardian or anybody else attempts to exercise any restraint over the person of anyone within this state, the writ of habeas corpus or any other appropriate remedy will always be effectual to enquire into the propriety of such attempted restraint, and upon such enquiry the proper court can make such order or judgment, as the case may require. If the facts stated in the answer in this case had been interposed as a return to a writ of habeas corpus, and nothing else .had been made to appear, there can be very little doubt that they would have been a good answer to a discharge under the writ. The courts of this state have full powers to investigate the whole subject of the guardianship, and may upon a proper showing refuse the guardian the custody of his ward, or restore him to such custody.” In New York the question is to how much importance should be placed upon foreign judgments where the welfare and interests of children are under consideration, and in the case of The People ex rel. Lucy Allen, Respondent, v. William H. Allen, Appellant, 105 N. Y. Court of Appeals, 628, says: “We dismiss this appeal for the reason that the courts below, upon a view of all the existing facts relating to the welfare and interests of the infants, exercised their discretion in awarding to the mother the custody of the children; and, in so doing, gave to the Illinois decree not the force of an estoppel, or the conclusive effect sometimes due to a judgment, but simply regarded it as a fact or circumstance bearing upon the discretion to be exercised without dictating or controlling it.”

An interesting case and one in point here is that of James H. Woodworth v. Azubah Spring, 4 Allen, 321, and from the opinion of Chief Justice Bigelow we quote: “ * * * if the right to the possession and control of the person of the child depended on his domicil, the right of the petitioner to claim the custody of his person would be indisputable. But we are unable to see that the facts that the child was born in another state, and that he has never by an act or election of his own or of his guardian obtained a new home here, have a decisive bearing on the question at issue in the present case. He is now lawfully within the territory and under the jurisdiction of this commonwealth, and has a right to claim the protection and security which our laws afford to all persons coming within its limits, irrespective of their origin or of the place where they may be legally domiciled. Every sovereignty exercises the right of determining the status or condition of persons found within its jurisdiction. The laws of a foreign state cannot be permitted to intervene to affect the personal rights or privileges even of their own citizens, while they are residing on the territory and within the jurisdiction of an independent government. Effect may be given by way of comity to such laws by the judicial tribunals of other states and countries; but, ex proprio vigore, they cannot have any extraterritorial force or operation. The question whether a person within the jurisdiction of a state can be removed therefrom depends, not on the laws of the place whence he came or in which he may have his legal domicil, but on his rights and obligations as they are fixed and determined by the laws of the state or country in which he is found.” Further on in this same opinion this court says: “An administrator appointed under the laws of a foreign state cannot act as such in this commonwealth. Nor, for like reasons, can a guardian appointed by virtue of the statutes of another state exercise any authority here over the person or property of his ward. His rights and powers are strictly local, and circumscribed by the jurisdiction of the government which clothed him with the office. (Story Confl. Laws, Sec. 499; Morrell v. Dickey, 1 Johns. Ch., 153; Kraft v. Wickey, 4 Gill & Johns., 322; Johnstone v. Beattie, 10 Cl. & Fin., 42, 113, 145.) So far, therefore, as the claim of the petitioner to the custody of the child in the present case rests on a supposed rightful authority to control his person in this commonwealth, by virtue of his appointment as guardian in the State of Illinois, it is not supported either on principle or authority. He cannot assert his tutorial power, de jure, in our courts or within our territory. * * * But the decree of the Probate Court does not deprive this court of the power to adjudicate and determine the question of the proper custody of the child as between a domestic guardian and one appointed in the place of the domicil of the infant. The jurisdiction of this court to decide, on habeas corpus or other proper process, concerning the care and custody of infants, is paramount, and cannot be taken away by any decree of an inferior tribunal. (Commonwealth v. Briggs, 16 Pick., 203.) The result is that neither of the parties to the present proceeding can assert or maintain an absolute right to the permanent care and custody of the infant who is now before the court. But it is for this court to determine, in the exercise of a sound judicial discretion, having regard to the welfare and permanent good of the child as a predominant consideration, to whose custody he shall be committed.”

While in this case it was admitted by the respective counsel that the consideration that should govern the court is that of the welfare of the child, we are unable to return this case for final determination without references to some of the rulings on that subject and to some showing that the courts have always held that where it is possible a family or those remaining should be kept together, and this latter consideration becomes ‘of great importance in the case here under consideration, for the reason that the plaintiff in error, John A. Jones, has shown by undisputed evidence that during the life time of John J. Bowman, the father of the child, he assisted with money in the care of his family. That he has the means to support and educate the child and is willing to keep the family together, not only because they are the children of his wife’s sister, but because it was the wish of their dead father. We will refer to only a few of the authorities in point. (Bennett v. Byrne, 2 Barb. Ch., 216; Holley v. Chamberlain, 1st Redfield, 333; Watson v. Warnock, 31 Ga., 718; Albert v. Perry, 4 N. J. Eq., 540; Commonwealth v. Addicks and Wife, 5 Binney, 520; Underhill v. Dennis, Guardian, &c., 9 Paige Chancery, 202; English v. English, 32 N. J. Eq., 738; Lusk v. Lusk, 28 Mo., 91; The Commonwealth v. Addicks and Lee, 2 Sergeant and Rawle, 174; Coffee and Wife v. Black, 82 Va., 567; Taylor v. Jeter, 33 Ga., 195; Warren v. Hofer, 13 Ind., 167; Markwell v. Pereles, 95 Wis., 406; In re Laura Doyle, 16 Mo. App., 159; Schlitz v. Roenetz, 86 Wis., 31; Cozine v. Horn, 1 Bradford’s Reports, 143; Henry D. Rust v. Mary E. Van Vacter, 9 W. Va., 600.) But the case which would seem to more than sustain the argument of counsel for plaintiff in error, and appeal to the human feelings of any court and where the rule that the interests of the child must be found and followed, is that of In re Bullen, Petitioner, &c., 28 Kan., 781.

And this court, under the authorities cited and others too numerous to set out, while it may appear that we practically annul an appointment made by the court in Minnesota, not because of its illegality, but because the interests of the child under the evidence submitted, believe that we can make a wiser arrangement and one authorized by law, and direct that this case be remanded to the District Court of Johnson County, Wyoming; that the appointment of Margaret Bowman be annulled, and that John A-. Jones be appointed guardian of Ida May Bowman, subject to the further order of that court, and that the plaintiffs in error, John A. Jones and Ella Jones, have judgment for their -costs herein expended.

Corn, C. J., -and Potter, J., concur.