Williams v. Hicks

Beck, P. J. (After stating the foregoing facts.) Hpon the hearing the court awarded the custody of the child to the father. [335] To this order the defendants excepted and by writ of error brought it here for review. There is no merit in the contention that the prior orders in tire case adjudicated finally the right of the defendants to the continued custody of the minor, William Hicks. There is nothing in the judgment passed on the two former hearings -to indicate that the court finally, passed upon the contention of the defendants that parental control had been expressly surrendered by the applicant. It is apparent, from a reading of the judgments passed at the two former hearings, that the court intended that the question of the custody of the child, when it should arrive at an age making it proper that he should be sent to school, be left open. It is infer-able from the terms of the order that the court did not think that a preponderance of the evidence showed that parental control had been surrendered permanently. At any rate the court was not concluded upon this question as against the applicant; and there was evidence submitted at the last hearing which would authorize the court to find that parental control had not been surrendered and lost by the father; and there was evidence adduced to show that the father was the proper custodian of the child at the age attained by the boy when the last application was filed, his age their rendering it the duty of the custodian to send him to school. So, without reference to the question as to whether that part of the court’s order containing the inhibition against the removal of the child from the jurisdiction of the court was violated or not, the court was fully authorized to find in favor of the applicant upon the controlling issues in the case; and the court having so found, his judgment will not be disturbed. Judgment affirmed. All the Justices concur.