In Re Samuel Parker

HOKE, J., concurring. The petitioner, Egbert Hardy, was on 12 December, 1905, on his ex parte application, appointed guardian of his nephew, Samuel Parker, an infant without property. The mother of said Samuel died at his birth, and the child was taken by his aunt, Mrs. Swinson, by whom he has been ever since supported and with whom he *Page 120 still remains. The child's father died a year after its mother. Notice of the application for guardianship should have been given to Mrs. Swinson and other relatives as required by Revisal, sec. 1772. Failure to do this is an irregularity which does not render void the appointment of a guardian, but certainly when it is made without notice to the relative then in charge of the infant, it is not binding upon her. She had no opportunity to oppose the order appointing the guardian, nor to appeal from it, and it is not a decree disposing of the custody of the child as against her. Besides, "it is well settled that the right of guardianship cannot be tried on habeas corpus" (15 A. E. (2 Ed.), 184); "nor to determine the right of guardianship"; nor "to decide as to conflicting rights to personal custody." Ib., 156. The petition sets out sufficient matter to cause the writ to issue, but upon the investigation it did not appear that the child was detained against its will, and the court found as facts that the child is about 11 years of age, is well cared for by Mrs. Swinson, who took the infant at its birth and has cared for and nurtured it ever since at her own expense; that the guardian has contributed nothing to that end; that the child is sent to school and Sabbath school, and is taken to church regularly, and that the character of his aunt and of her husband is good and the care and training given by them to the infant, Samuel Parker, are such that it would be to the best interest of (172) said infant for him to remain in the care and keeping of his said aunt and her husband. There being no illegal restraint shown, upon the above findings the court properly remanded the infant to the custody of his aunt. The object of the writ of habeas corpus is to free from illegal restraint. When there is none, the writ cannot be used to decide a contest as to the right custody of a child (except when the contest is between the parents of the child. Revisal, sec. 1853.) S. v. Cheeseman, 5 N.J.L. 511;S. v. Clover, 16 N.J. L., 419; Foster v. Alston, 7 Miss. 406, and numerous other cases cited. 15 A. E. (2 Ed.), in note 2, p. 156, and in note 2, pp. 184, 185, 186, and notes. The rule is clearly stated byChancellor Kent. In Wollstonecraft's case, 4 Johns. Chan., 80, he says that the sole function of the writ in such cases is "to release the infant from all improper restraint, and not to try, in this summary way, the question of guardianship, or to deliver the infant over to the custody of another; that it is only to deliver the party from illegal restraint, and if the infant is competent to form and declare an election, then to allow the infant to go where it pleases, and if too young to form a judgment, then the court is to exercise its judgment for the infant." In short, the writ of habeas corpus cannot be used as a claim and delivery of the person. *Page 121 The guardian must assert his right to the custody of his ward by a civil action against the persons now in charge of him, while they in turn, if so advised, can take appropriate steps to set aside the guardianship. In this summary proceeding by habeas corpus the Court can only consider the rights of the child — whether he is under illegal restraint or not; and if he is not, the Court will follow the course laid down by Chancellor Kent, quoted supra. Affirmed.