Leming v. Sale

27 N.E. 619, 128 Ind. 317, 1891 Ind. LEXIS 322

• Court: Indiana Supreme Court
• Decided: May 22, 1891
• Docket: No. 15,143
• Status: Published

Opinion

Coffey, J.

This was an application by the appellee against the appellant, made to the judge of the Warren Circuit Court, for a writ of habeas corpus to obtain the possession of a child.

Filed May 22, 1891.

' The petition in the cause alleges that the appellee obtained a divorce from the appellant in the Warren Circuit Court in the year 1888 ; that in said cause the court decreed the custody of the child in controversy, which is the child of the parties to this suit, to the.appellee; that the appellee placed said child in the care of his sister, from, whom the appellant took it without the knowledge or consent of the appellee, and without the knowledge or consent of the sister, and that she had for some months secreted and kept the child from the custody of the appellee.

The appellee filed a return, in which she sought to justify her possession of the child, on the ground that it was to its interest to remain in her custody.

The court sustained exceptions to this return, holding thát the decree in the divorce suit awarding the custody of the child to the appellee was conclusive between the parties, and settled the right of the appellee to such custody.

The only question presented for our consideration relates to the propriety of this holding.

Whatever may be the rule elsewhere, the question here presented is not an open one in this State. Williams v. Williams, 13 Ind. 523; Baily v. Schrader, 34 Ind. 260; Sullivan v. Learned, 49 Ind. 252; Joab v. Sheets, 99 Ind. 328.

It is settled by these cases that a decree of the kind under 'consideration fixes the status of the child as between its parents, and is conclusive between the parties until modified or set aside for cause shown by some subsequent, or supplemental, proceeding in the same cause.

There was no error in the ruling of the court below.

Judgment affirmed.