Mesmer v. Egland

Myers, J. This proceeding was begun by appellant filing in the Clark Circuit Court her petition for a writ of habeas corpus to obtain the custody of her daughter, at that time nine years of age, alleged to be unlawfully restrained of her liberty by appellee. The writ was issued as prayed, and appellee filed her return thereto and produced the body of the little girl in court. Appellant filed exceptions to appellee’s return, which were overruled. A general denial to the return closed the issues. A trial before the court resulted in a general finding for appellee and judgment awarding the custody of the child, Dorothy Mesmer, to appellee, with the privilege and right of appellant to visit her at the home of appellee at all reasonable times. From that judgment, appellant has appealed, and has assigned as errors: (1) The overruling of her exceptions to appellee’s return to the writ; and (2) the overruling of her motion for a new trial. We may well assume that appellant has abandoned her challenge to appellee’s return, inasmuch as her brief does not contain a concise statement of either the return or the exceptions thereto. Under the heading of “Points and Authorities,” she asserts, but without the citation of any authority, that appellee’s return “admits,” “does not deny,” or “has failed to set up” certain facts, any one of which, for the reason stated, rendered the return insufficient. Appellee, notwithstanding her brief brings to our attention a copy of her return, insists that appellant’s failure to furnish *702 a concise statement of the record in the particulars mentioned must be treated as an abandonment on appeal of any question properly reviewable under her first assignment of error. This contention is sustained. Cl. 5, Rule 22, Supreme and Appellate Courts; Christie v. Slininger (1915), 183 Ind. 658, 110 N. E. 61; Tecumseh, etc., Mining Co. v. Buck (1922), 192 Ind. 122, 135 N. E. 481; Bennett v. Root Furniture Co. (1911), 176 Ind. 606, 96 N. E. 708; Shay v. Goins (1918), 67 Ind. App. 674, 119 N. E. 808. However, the infant in this case was brought into court in obedience to a writ of habeas corpus. She was, therefore, in the custody of the court, subject to its disposition, uncontrolled by the averments of the return. Bullock v. Robertson (1902), 160 Ind. 521; Glansman v. Ledbetter (1921), 190 Ind. 505, 130 N. E. 230; Buck, Gdn., v. Squires (1924), 194 Ind. 112, 142 N. E. 7. That the finding of the court is not sustained by the evidence and is contrary to law are the causes assigned for a new trial. Generally speaking, proceedings, as here, involving the custody of a child, present the single question: What is for the best interest of the child ? This case, as disclosed by the evidence, is no exception to the general rule. We learn from the evidence that the subject of this controversy has resided with her great-grandmother (appellee) since she was five months old, except for short intervals when she visited her mother. She goes to school and attends Sunday School, and there is evidence to the effect that she has a good home with her great-grandparents, is well treated and desires to remain with them. It appears that the mother (appellant) enjoys a splendid reputation, resides in Louisville, Kentucky, with her sister and brother-in-law, who bear a good moral reputation, and who had two children, four and seven years old at the *703 time of the trial, April 18, 1923. Appellant expects to take the child with her to a six-room rented home of her brother-in-law, who receives a salary of seventy-five dollars a week. Appellant’s only income is fourteen dollars and fifty cents to fifteen dollars a week as an employee of the Axton-Fisher Tobacco Company, where she works during'the day. We will not take the space to further recite the evidence given in the cause, as we deem it sufficient to say we would not be warranted in holding that the finding of the trial court was not supported by substantial evidence, and, therefore, on that account, it was not contrary to law. Judgment affirmed.