Sears v. Dessar

28 Ind. 472

• Court: Indiana Supreme Court
• Decided: November 15, 1867
• Status: Published

Opinion

Ray, J.

— The appellee filed her petition for a writ of habeas corpus to obtain the custody of her infant child, alleged to be unlawfully detained by the appellant. The petition avers that the appellee had obtained a divorce from her former husband, one Faiokner, and in the decree the custody of the child had been given to her. The writ was issued on the 23d day of September. On the next day a return was made to the writ, denying that the appellant had the custody of the child on the 23d day of September, or since, and averring that the child was then with one Henry Armstrong, in Montgomery county, and had been in such custody since the 21st day of September, wherefore appellant could not produce the infant as commanded by the writ. The return also stated that the child’s reputed father was living, and that the appellee was not a suitable person to have charge of the child. Exceptions were taken to this return, and were sustained, and the appellant ordered to deliver up the child to the petitioner,

It is objected that the petitioner did not file a copy of the decree of divorce with her petition. Her right to the custody of her child as against the appellant grew out of her relationship to it, and not out of the decree. In no case would it have been necessary to file a copy of the decree. We regard, the return as plainly defective in that it fails to state the reason for the change of persons having the custody of the infant, as the statute requires. Had the return complied with this requirement, it might have disclosed that the object had been to avoid the expected process of the court, and called for the exercise of a power which would perhaps bring the child again within the jurisdiction of the court.

C. C. Nave, for appellant. J. V. Hadley, for appellee.

The order is affirmed, with costs.