Buck, J.
The record in this proceeding is unnecessarily voluminous, and bristles with exceptions to the admission or refusal to admit testimony. Many of these exceptions, also, are of so frivolous a nature that they have been ignored, not only in the arguments and briefs of counsel, but in the specification of errors itself. ■ A proceeding in habeas corpus is summary in its character,, and we feel it our duty to vigorously condemn any unnecessary impeding of this, its essential function, by technical and hypercritical criticism in reference to the admission of any evidence tending to enlighten the trial court. This is true despite any distinction of procedure or testimony to be observed in the case of a writ obtained by a parent to test the right to the custody of his child, and one issued to decide whether the petitioner is illegally deprived of his liberty. Mr. Church in his work on Habeas Corpus (section 177) says : “It has been heretofore observed that proceedings by habeas corpus are summary in their character, and that great discretion is given to and exercised by courts and judges in such proceedings. Where the statute provides that courts and judges may ventilate the whole matter brought [156]*156before them by habeas corpus, the general principles of evidence are doubtless their rule and guide; but, they are not bound to so strict an adherence to them as govern them in trials by jury, because, in the words of that great judge, Tilghman, ‘it is presumed that their knowledge of the law prevents their being carried away by the weight of testimony not strictly legal. ’ ’ ’
Upon the objection that it was incompetent and immaterial, the lower court at first excluded the decree and judgment roll of the divorce granted in Arizona, and then, at a later stage of the trial, admitted them for the purpose of showing that a divorce had been granted between Joseph L. Giroux and Rebecca Giroux. The consistency of these rulings is not apparent to us, but respondent’s counsel contend that this decree of divorce is void, and that the lower court found it to be so. An inspection of the judgment roll satisfies us that there is nothing on its face to indicate that the decree of divorce was void, and, the existence of the decree itself being denied,— even if it could be attacked on jurisdictional grounds by extrinsic evidence, — the exclusion was erroneous. But any error in this respect seems to have been cured by the subsequent admission of the decree and judgment roll, even though this admission was limited to merely showing that a divorce had been granted. The gist of the inquiry as to this decree is whether it is void, or only voidable. Mr. Freeman, in his work on Judgments (sections 562-564, 588 — 590), lays it down as a general proposition that, where an action is based on the judgment of a court of another state, the jurisdiction of that court to pronounce the judgment is always open to question, and that a defendant can controvert jurisdictional statements and recitals by any competent evidence, extrinsic or otherwise. Still, the scope of this jurisdictional inquiry is clearly limited, and Mr. Freeman, in the latter part of section 564, supra, clearly points this out. He says: “And ought not the defendant to be always permitted to prove that he was a nonresident, and that he did not submit himself to the jurisdiction of the state whence the record is taken ? On the other [157]*157hand, if the defendant were a resident within the state when and where the record was made, the fact of his subsequent removal ought neither to impair nor to strengthen the obligation of the judgment. To whatsoever state he immigrated, the record, when produced against him, should have the effect whi_h would be given it in like circumstances if he still resided in the state whence it was taken; and this, too, independent of the question whether it is positive, doubtful,’ or silent in reference to jurisdictional facts. It seems to us, then, that the only issue which ought to be tried in any state in regard to the jurisdiction of a court which has rendered a personal j udgment in another state is, was the defendant, when the suit was instituted, within the state whose court assumed to exercise authority over him ? or, if without the sta e, did he submit himself to its authority ? If the issue should be answered in the negative, then the judgment ought to be disregarded, no matter how positively the record enumerates all needful jurisdictional facts. If, on the other hand, the issue be determined in the affirmative, then the record ought, upon jurisdictional as upon other questions, to have precisely ‘the same faith and credit given it as it had by law or usage in the courts of the state whence it was taken. ’ ’ ’
The evidence in the record before us in no wise establishes the fact that this divorce was void. The Arizona clerk who issued the summons, the deputy sheriff who served it, and the relator, J oseph L. Giroux, all state most positively that there was no fraud in the service of the summons upon Mrs. Giroux. She herself, in her own testimony, virtually concedes that a summons was served on her personally while she was in Arizona. The evidence in the record, moreover, conclusively shows that at the time of this service she was a resident of Arizona. Nor does the fact that she departed from Arizona a few days prior to the rendition of the decree in any wise tend to establish the fact that she was a nonresident of that territory. Construing her testimony most favorably to herself, when she left Arizona she did so with no intent whatsoever to change her domicile and begin a permanent residence in Mon[158]*158tana. Even then, if her husband did perpetrate a fraud in respect to the obtaining of this divorce, nevertheless the jurisdiction of the Arizona court pronouncing the decree against her had clearly attached, by reason of this personal service of its process upon her, and she was as much under the control of that court as if she had remained in Arizona until the decree had been pronounced. Without passing upon the question of whether or not the general rule as to collateral attack is more stringent in a habeas corpus proceeding of this character tban in a suit on the judgment itself sought to be assailed, we are of the opinion that, even allowing the widest latitude to the doctrine that a judgment rendered in one state may be attacked when sued upon in another in reference to its jurisdictional statements and recitals by any competent evidence, extrinsic or otherwise, this decree of divorce was voidable only, and not void. In the case of Edgerton v. Edgerton, 12 Mont. 122, 29 Pac. 966, the facts alleged in respect to the fraud claimed to have been perpetrated by the husband in reference to the appearance of the wife are closely analogous to the alleged facts relied upon by Mrs. Giroux in the present suit. It is true, the decree sought to be collaterally attacked in Edgerton v. Edgerton, was a domestic judgment, and the present subject of attack is a judgment of another state; but the latter is voidable only, like the former, and, neither being subject to collateral attack on the ground of fraud alleged to have been perpetrated by- the plaintiff in each in preventing his wife from appearing at the trial, there is no distinction in the status of the two decrees. They stand on the same plane, and the law as laid down in Edgerton v. Edgerton is clearly applicable to this Arizona decree. See, also, 2 Bishop on Marriage, Divorce and Separation, § 1568.
It is claimed by counsel for respondent that the court below found the agreement for separation invalid.
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Buck, J.
The record in this proceeding is unnecessarily voluminous, and bristles with exceptions to the admission or refusal to admit testimony. Many of these exceptions, also, are of so frivolous a nature that they have been ignored, not only in the arguments and briefs of counsel, but in the specification of errors itself. ■ A proceeding in habeas corpus is summary in its character,, and we feel it our duty to vigorously condemn any unnecessary impeding of this, its essential function, by technical and hypercritical criticism in reference to the admission of any evidence tending to enlighten the trial court. This is true despite any distinction of procedure or testimony to be observed in the case of a writ obtained by a parent to test the right to the custody of his child, and one issued to decide whether the petitioner is illegally deprived of his liberty. Mr. Church in his work on Habeas Corpus (section 177) says : “It has been heretofore observed that proceedings by habeas corpus are summary in their character, and that great discretion is given to and exercised by courts and judges in such proceedings. Where the statute provides that courts and judges may ventilate the whole matter brought [156]*156before them by habeas corpus, the general principles of evidence are doubtless their rule and guide; but, they are not bound to so strict an adherence to them as govern them in trials by jury, because, in the words of that great judge, Tilghman, ‘it is presumed that their knowledge of the law prevents their being carried away by the weight of testimony not strictly legal. ’ ’ ’
Upon the objection that it was incompetent and immaterial, the lower court at first excluded the decree and judgment roll of the divorce granted in Arizona, and then, at a later stage of the trial, admitted them for the purpose of showing that a divorce had been granted between Joseph L. Giroux and Rebecca Giroux. The consistency of these rulings is not apparent to us, but respondent’s counsel contend that this decree of divorce is void, and that the lower court found it to be so. An inspection of the judgment roll satisfies us that there is nothing on its face to indicate that the decree of divorce was void, and, the existence of the decree itself being denied,— even if it could be attacked on jurisdictional grounds by extrinsic evidence, — the exclusion was erroneous. But any error in this respect seems to have been cured by the subsequent admission of the decree and judgment roll, even though this admission was limited to merely showing that a divorce had been granted. The gist of the inquiry as to this decree is whether it is void, or only voidable. Mr. Freeman, in his work on Judgments (sections 562-564, 588 — 590), lays it down as a general proposition that, where an action is based on the judgment of a court of another state, the jurisdiction of that court to pronounce the judgment is always open to question, and that a defendant can controvert jurisdictional statements and recitals by any competent evidence, extrinsic or otherwise. Still, the scope of this jurisdictional inquiry is clearly limited, and Mr. Freeman, in the latter part of section 564, supra, clearly points this out. He says: “And ought not the defendant to be always permitted to prove that he was a nonresident, and that he did not submit himself to the jurisdiction of the state whence the record is taken ? On the other [157]*157hand, if the defendant were a resident within the state when and where the record was made, the fact of his subsequent removal ought neither to impair nor to strengthen the obligation of the judgment. To whatsoever state he immigrated, the record, when produced against him, should have the effect whi_h would be given it in like circumstances if he still resided in the state whence it was taken; and this, too, independent of the question whether it is positive, doubtful,’ or silent in reference to jurisdictional facts. It seems to us, then, that the only issue which ought to be tried in any state in regard to the jurisdiction of a court which has rendered a personal j udgment in another state is, was the defendant, when the suit was instituted, within the state whose court assumed to exercise authority over him ? or, if without the sta e, did he submit himself to its authority ? If the issue should be answered in the negative, then the judgment ought to be disregarded, no matter how positively the record enumerates all needful jurisdictional facts. If, on the other hand, the issue be determined in the affirmative, then the record ought, upon jurisdictional as upon other questions, to have precisely ‘the same faith and credit given it as it had by law or usage in the courts of the state whence it was taken. ’ ’ ’
The evidence in the record before us in no wise establishes the fact that this divorce was void. The Arizona clerk who issued the summons, the deputy sheriff who served it, and the relator, J oseph L. Giroux, all state most positively that there was no fraud in the service of the summons upon Mrs. Giroux. She herself, in her own testimony, virtually concedes that a summons was served on her personally while she was in Arizona. The evidence in the record, moreover, conclusively shows that at the time of this service she was a resident of Arizona. Nor does the fact that she departed from Arizona a few days prior to the rendition of the decree in any wise tend to establish the fact that she was a nonresident of that territory. Construing her testimony most favorably to herself, when she left Arizona she did so with no intent whatsoever to change her domicile and begin a permanent residence in Mon[158]*158tana. Even then, if her husband did perpetrate a fraud in respect to the obtaining of this divorce, nevertheless the jurisdiction of the Arizona court pronouncing the decree against her had clearly attached, by reason of this personal service of its process upon her, and she was as much under the control of that court as if she had remained in Arizona until the decree had been pronounced. Without passing upon the question of whether or not the general rule as to collateral attack is more stringent in a habeas corpus proceeding of this character tban in a suit on the judgment itself sought to be assailed, we are of the opinion that, even allowing the widest latitude to the doctrine that a judgment rendered in one state may be attacked when sued upon in another in reference to its jurisdictional statements and recitals by any competent evidence, extrinsic or otherwise, this decree of divorce was voidable only, and not void. In the case of Edgerton v. Edgerton, 12 Mont. 122, 29 Pac. 966, the facts alleged in respect to the fraud claimed to have been perpetrated by the husband in reference to the appearance of the wife are closely analogous to the alleged facts relied upon by Mrs. Giroux in the present suit. It is true, the decree sought to be collaterally attacked in Edgerton v. Edgerton, was a domestic judgment, and the present subject of attack is a judgment of another state; but the latter is voidable only, like the former, and, neither being subject to collateral attack on the ground of fraud alleged to have been perpetrated by- the plaintiff in each in preventing his wife from appearing at the trial, there is no distinction in the status of the two decrees. They stand on the same plane, and the law as laid down in Edgerton v. Edgerton is clearly applicable to this Arizona decree. See, also, 2 Bishop on Marriage, Divorce and Separation, § 1568.
It is claimed by counsel for respondent that the court below found the agreement for separation invalid. It was admitted in evidence over the objection of the respondent. But just what view the court took of this agreement the record does not disclose. In a case decided at the present term (Stebbens v. Morris, 47 Pac. 642), we stated generally our [159]*159views of the law applicable to agreements for separation between a husband and wife, considered with reference to the common law. To the agreement before us is added a feature which did not appear in the agreement for separation under consideration in Stebbins v. Morris, namely, a provision for the custody of the issue of the marriage. This new feature does not materially affect the principles laid down in Stebbins v. Morris, however. The matter of the custodianship of children is as proper a subject for provision in an agreement for separation between the parents as the wife’s maintenance, or the division of property. If the agreement for the separation itself is not per se void, neither are its naturally incidental provisions. We can readily understand that, in a direc' proceeding to set aside the decree of divorce itself, such an agreement might be considered void, from an evidentiary standpoint, on the ground that it was collusively entered into for the purpose of facilitating the divorce, or that, in a direct action exclusively for its enforcement, a court of equity, fully apprised of latent fraud connected with it, might declare it contrary to public policy. But in the case before us the validity of this particular agreement should stand or fall with this decree it preceded, and from which it would be difficult to separate it.
The record shows that the relator, Giroux, has paid over to Rebecca Giroux the $1,300 he agreed to pay her, and that, even in the decree of divorce he obtained, a provision for the custody of his son alone was inserted, in strict compliance with the terms of the agreement. It inferentially appears, also, that Mrs. Giroux now relies upon this money for the maintenance of herself and the children. Should she be allowed, then, to assert a condition of financial responsibility so acquired, to establish her right to the boy, George, and at the same time object to any consideration of this very agreement which she repudiates, in so far as her own covenants therein are concerned? We.think not. As shedding light upon the right to the custody of this child, the lower court properly admitted the agreement in evidence; and, if it was subsequently ignored, error was committed.
[160]*160Excluding from consideration any evidence as to the alleged fraud in obtaining the divorce from his. wife, the charge against Joseph L. Giroux, that he is not a fit person for the custody of the boy, is wholly unsubstantiated. It appears from Rebecca Giroux’s own testimony that he is a man of means, and has always been a kind father. The charge, too, that his second wife is not a proper person to aid him in the rearing of the boy, is also without apparent foundation. Even the somewhat strained objection that she cannot speak the English language disappears in the light of the evidence. In this view, all the evidence concerning respondent’s good character since she has lived in Montana is immaterial. She is before us in this record in the attitude of a justly discarded wife, — of one divorced for violation of her marital obligations. Conceding that a father recreant to'his paternal duties will not be upheld in any merely arbitrary assertion of his right to the custody of his child, as against a good and conscientious mother; conceding that a child is not a mere chattel, subject to the whim or caprice of either of its parents, and that even at common law, as construed at the present time, it has an identity of its own, which courts of justice recognize and protect whenever a necessity-for such protection arises,- — conceding all this, and how does it avail the respondent ? It must be borne in mind that the tie between parent and child is one of the most binding in human life, — one which the law of nature itself has established. No legislation, no judicial interpretation of legislation, should lightly disregard the reciprocal duties of this relationship. Conflicts between parents themselves as to the custody of their offspring are always necessarily painful. But, in the adjustment of these conflicts, mere sentiment and involuntary sympathy have no place. The law, however stern it may seem to the losing party, must govern. In these cases the elementary principles of the sturdy old common law still apply, however modified they may be by legislation and judicial interpretation, and probably will until a higher development of our present civilization supersedes them. A father is the head of the family. Upon him pri[161]*161marily devolves the responsibility for the support — physical, moral, and social — of his wife and children. If he is true to this duty and qualified to discharge it, he is entitled to the reciprocal allegiance of those whom he so sustains, and whom it is his duty to so sustain. Where a father and mother are equally fitted in character and ability for the custody of their children, and an unhappy conflict arises between them as to who shall have such custody, in the eye of the law the father’s right is superior to the mother’s, and the courts must maintain it. The bond between a mother and her babies may seem closer, from a mere instinctively emotional standpoint; but under the natural compact of our society and civilization, as at present developed, and from which this legal principle has been evolved, the relation of. the father to his children is the higher, sociologically considered.
The greater part of the material evidence and testimony in this record is contained in depositions and written instruments. Consequently, in considering its weight and effect we are not seriously hampered by that element of verity imported to the verdict of a jury, and the findings of a court corresponding thereto, when the witnesses have testified viva voce at the trial. The oral testimony of the respondent herself was manifestly elusive, vague, and contradictory. There was hardly any corroboration of it. Opposed to her statement were clear and straightforward denials in the depositions of several witnesses whose credibility was in no wise impugned, and who presumptively told the truth. The letter which Mrs. Giroux wrote to Mrs. Murry (see statement) in reference to the separation almost of itself contradicts her allegations as to fraud and deceit practiced upon her. The deposition of the notary public who took her acknowledgement to the agreement of separation states that, without the hearing of her husband, he made her acquainted with its contents, and in this agreement is a clear and unequivocal reference to the pending divorce suit. In this view of the law and the evidence, we do not think the lower court was justified in rendering the judgment it did. We do not wish to be understood as holding that this [162]*162decree of divorce awarding the custody of the child to the father was of itself absolutely binding upon the lower court. Had proof been introduced showing that the father, since the decree, had become an unfit person for the custody of the boy, and that, as between the two parents, for the child’s protection it would have been better to award the custody to the mother, the conditions would have been different. But no such condition of affairs was before the lower court. Had proper weight been attached to the decree of divorce, no doubt a different judgment would have been entered. The evidence shows conclusively that there is nothing in the contention of respondent’s counsel that the wife and child were domiciled in Montana at the time the decree of divorce was obtained. We have clearly expressed our view as to the wife’s domicile. The child’s domicile was that of his father. If the pleadings had conceded the contrary, an amendment should have been allowed as of course to conform them to the proof.
Two other alleged errors are presented for our consideration. The following interrogatory was propounded to several witnesses whose depositions were taken, namely: “Which do you consider the better qualified to have the care and custody of their said minor child, George L. Giroux, now about seven years of age, — relator or respondent? ” It was objected to as incompetent on the ground that it asked for a conclusion of the witnesses. We think the court was ri^ht in sustaining the objection. The question manifestly asked for a conclusion, and was therefore clearly incompetent. The following interrogatory was also propounded: “State whether you consider respondent a fit and proper person to have the care and custody of the said minor child, George L. Giroux, and give reason for your opinion. ’ ’ While this last interrogatory is less objectionable than the former, still the objection to it, that it asked for a conclusion, was properly sustained. The judgment is reversed, with costs. The cause is remanded, with directions to the lower court to render judgment in favor of the appellant for the custody of the child George L. Giroux.
Reversed.
Pemberton, C. J., and Hunt, J., concur.