In re Knott

Ostrander, J. {after stating the facts). The order for the commitment was made March 15th, as appears by the record of the court. The commitment was issued that day. The clerk, by inadvertence, dated it March 14th, and recited therein that the order therefor was made on March 14th. This correction of the commitment was asserted as a reason for quashing the same. With respect to this the court said: “As far as the change in the writ is concerned, the court approves of the change in conformity with the facts.” This after counsel for both parties, in response to the inquiry of the court, admitted that the changes made conformed to the fact. The respondent was in any event in custody and the change in the commitment affected him in no way. It would have been mere matter of form to hand it to the clerk for correction. The statute requires the person upon whom any such writ shall have been duly served, if such person shall have had the party in his power or custody or under his restraint at any time prior or subsequent to the date of the writ, but has transferred such custody or restraint [16] to another, to particularly state in the return to whom, at what time, for what cause, and by what authority such transfer took place, and, further, that if the person upon whom the writ has been served shall refuse or neglect to make a full and explicit return to the writ within the time required by law, and no sufficient excuse shall be shown for such a refusal or neglect, it shall be the duty of the court before whom such writ shall have been made returnable, .upon due proof of the service thereof, forthwith to issue an attachment against such person and commit him to the jail of the county until he shall make return to the writ. See 3 Comp. Laws, §§ 9869-9873. It will be perceived that in committing the respondent the court was not exercising the inherent jurisdiction and power of courts to compel obedience to the orders of court, but was following the method which the statute affirmatively requires shall be followed to enforce obedience to the command of the writ. If, therefore, the court had jurisdiction to issue the writ, and if the return thereto, the child not being produced, was evasive and not full and explicit, the action of the court has affirmative legislative approval. It is said that the petition fails to show that the petitioner is entitled to the custody of the child as against the respondent, and, on the other hand, shows that the respondent is legally entitled to said custody. This contention is based, in part, upon the provisions of 3 Comp. Laws, § 8701. This section is a part of chapter 234, the title of which is “Guardians and Wards,” and relates to the powers of judges of probate to appoint guardians for minors. There can be no doubt that the father is the natural guardian of his child, nor that the statute just referred to contemplates that, as against all other relatives and all other persons, the father, and, in case of his decease, then the mother, they being, respectively, competent to transact their own business and otherwise suitable, are entitled to be appointed guardians of the persons of minor children. It is also provided (3 Comp. Laws, § 8689) [17] that in case of the separation of husband and wife having minor children, the mother of said children shall be entitled to the care and custody of all such children under the age of 12 years. There is nothing in either provision which interferes with the right of a court of competent jurisdiction, upon investigation and upon consideration of the best interests of a minor child, to commit said' child to the custody of either the father, the mother, or of some other suitable person. But until the right to such custody has been judicially determined, and as between parents of a minor who are living together as husband and wife, there is no rule, statute or other, which permits either, as of right, to dispose of a minor child to the exclusion of the other. It is averred in the petition for the writ of habeas corpus that since the 23d day of February, 1910, these parties have not resided together as husband and wife at their home. The answer of respondent indicates a serious estrangement. If the petition is treated as asserting a separation of the parents, then it asserts also a prima facie right of the mother to the custody of this child. It is said that the statute (section 9858) limits the right to the writ to cases where persons are restrained or imprisoned within the State, and limits the jurisdiction of the circuit court for Wayne county (section 9860) tocases of restraint within the county, and there is no allegation in the petition that the child is within the State or within the jurisdiction of the court. We do not feel called upon to enter at this time into a nice discussion of the effect of the apparent legislative limitations upon the use of the writ of habeas corpus. See In re Jackson, 15 Mich. 417; Rivers v. Mitchell, 57 Iowa, 193 (10 N. W. 626); 21 Cyc. p. 309. The parents of the child are both of them within the jurisdiction of the court, and their home and that of the child is in Wayne county. It is alleged in the petition that the child is detained, imprisoned, or concealed by the father in the city of Detroit or elsewhere. This is equivalent to the allegation that the restraining force, the [18] control of the detention, and of the person of the child is within the jurisdiction, and it does not appear that the place of detention can be more specifically stated. What we are now required to decide is whether the allegation is sufficient for purposes of jurisdiction to issue the writ. We hold that it is sufficient. It is said that the petition does not allege that the respondent is unfit to have the custody of the child or that he is not caring for him in a proper and reasonable manner, or that the petitioner is a fit person to have his care and custody or that she is in condition to care for him properly, and that there is no statement in the petition from which it may be inferred that the child would be benefited by the transfer from the custody of respondent to that of the petitioner; that, unless such a showing is made on the hearing, the court would be obliged to dismiss the writ because it could not properly make an order giving the child into the custody of the mother.^ The argument assumes that the child is in the custody of the father, and it must rest upon some notion of a legal right of one parent as against the other, in the absence of judicial determination, to dispose of the child — an argument already answered. It may be added that it is the husband who is here asserting such right of disposal and admits having placed the child beyond the care and control of his mother; that without a return which shows what he has done with his child, and without his production of the child, the court is in no position to make intelligently any order in the premises. It is said that, in any event, the return is sufficient because it appears therefrom that the child is outside of the State of Michigan. It does not appear by the return that the child is outside of the State of Michigan or outside of the county of Wayne, or that it was outside of the jurisdiction when the return to the writ was made. It would not be beyond the power of the court to inquire into the fact if respondent had returned absolutely that at the time the writ issued and at the time the return was made the [19] child was outside of the State. Such an allegation is traversable. In this case the allegations found in the return are not traversed, for the very good reason that the return itself was adjudged by the court to be an insufficient return. Clearly the law would need amendment if the jurisdiction of a court in habeas corpus proceedings depended upon the allegations in the return to the writ. We find no error in the proceedings. We find the return incomplete, not explicit, and not such an one as the statute requires to be made. The petitioner in habeas corpus will recover of the respondent (the plaintiff here) costs of this court to be taxed as in a cause heard upon motion. Hooker, Moore, McAlvay, and Blair, Jj., concurred.