Howry v. Calloway

SlMRALL, J. : The relator, James M. Howry, claims the custody and possession of the person of Patsy Payne, on the ground that she is a minor, withinT8 years of age, and was duly apprenticed to him by the chancery court of Lafayette county, and that the respondent detained her. The facts elicited at the trial of the habeas corpus were, that said Patsy had been apprenticed to the relator, and before the expiration of her term of service had left his house and premises, and had married the respondent. Did the relator acquire the legal right to the custody and control of Patsy, because of the proceedings of the chancery court? The statute . in “ relation to apprentices and orphan children ” (Code 1871, chap. 24, 1871) provides, first, that minor children shall not be bound out as apprentices without the consent of their parents (§ 1793); but they may be, with their consent (§ 1794). So may those who have no near relations able and willing to support them (§ 1795). There is a clear implication that the chancellor shall consult the parents if living,, or the next of kin, before he comes to final action, for section 1800 declares that those who have beén bound out, without the knowledge of the parents or next of kin, “ the same (the apprenticing) shall be taken and held to be invalid.” How shall the court be informed that the apprenticing is with the knowledge of the parents, or next of kin, unless they have been notified of what is proposed to be done, so that they may appear, and consent or make opposition. The act of November, 1865, did not prescribe that notice should be given to any one of the application to apprentice. Yet, in Jack v. Thompson, 31 Miss. 50, it was declared, that “ the principle is universal, that no judgment, order or decree is binding upon a party who had no notice of the proceeding against him.” There [592] the apprenticeship was annulled, because the minor was not brought into court, or notified of the proceedings. The condition of facts upon which the right to bind out an apprentice are : that the parents, if living in this state, file with the chancellor their consent; second, where the parents are unable to support them, or are bringing their children up in vicious habits; or, third, where the parents are dead, and no near relatives will take the care and support of them. To the validity of any order of the court binding out an apprentice, the one or the other of these circumstances must apopear. And that the jurisdiction may be wisely and prudently exercised, the parents, if living in this state, if not, then the next nearest of kin, must be notified to appear; and if the proceedings are not'made known to them, then the order of apprenticeship is “ null and void.” The transcript adduced before the chancellor does not show that the minor had no parents living in this state. It does not show, the parents being dead or non-resident, that the next of kin were summoned, or that there were no next of kin. It does not show that the minor even was brought into court, or in any manner notified of the relator’s application. There was (it would seem) no written petition setting forth the reason and propriety of apprenticing the minor; the only information that such application was made, is the recital in the order at rules made by the clerk; the recital is, that “this day James M. Howry made application,” and it appearing that he is legally entitled, and has given bond and security, therefore the minor is bound to him. The entire proceeding was ex parte, and consummated “ uno featu.” It is plain that the relator did not acquire the right and relation of a master to an apprentice. It follows, therefore, that his claim has no foundation to rest upon. The decree is affirmed.