DocketNumber: No. 1,846
Citation Numbers: 6 D.C. 1
Judges: Cartter, Purcell
Filed Date: 5/14/1863
Status: Precedential
Modified Date: 9/9/2022
delivered the opinion of the Court:
The motion to set aside or vacate the order made by the Chief Justice of this Court on the 22d of March last must be denied:
1. Because we are disposed to regard the order as a mere interlocutory order, such as a judge possessing plenary equity jurisdiction may make at Chambers as well as in Term.
It is true that the petitioner asks for some things to be done which it is the proper office of an injunction to enforce; for example, such as enjoining the defendant from • taking any proceedings in the Orphans’ Court of this District, or in any other judicatory in respect to these infants, and the further command that the defendant return these infants to this District. But we are disposed to look at the
This is the substance of the petition upon which the Chief Justice endorsed “allowed.” Now, though this petition might contain a prayer or request that other things should be done, which, upon consideration, this Court would refuse to order to be done, that would, in a court of equity, bo no reason for refusing to do what was properly asked for and just and proper to be done.
2. Upon the merits of this motion the material and undisputed facts are simply these:
On the 24th day of February last the infant children of the defendant by their next friend filed their bill in the late Circuit Court of this District against their father, charging that his habits and character were such as disqualified 'him from acting as the guardian of their estates and persons.
That after such bill was filed and a subpoena issued and served upon the defendant, he took these children from the custody of the person having it at the time the suit was commenced, and removed out of the jurisdiction of this Court with the intent and purpose of rendering the exercise of its authority and protection impotent and of no effect; that this act was done, if not upon the suggestion, at least under the advice and approval of his counsel.
We are of the opinion that the moment this suit was commenced and the subpoena was served upon the defendant, these parties were in Court, and these infant children were in its custody and under its care and protection. In other words, they became, in the language of the law, “wards of this Court,” and to remove them beyond its jurisdiction and control, and especially if with intent to evade its authority, is a grave offense.
1. That the motion to dissolve the order granted on the 22d of March be denied.
2. That the defendant return, or caused to be returned, said infant children to the custody of the person or persons in this District whence they were removed within ten days from the date of this order.
3. That in default of so doing the answer of the defendant filed in this cause be stricken from the files of this Court, and the -plaintiff be allowed to proceed in the cause in the same manner as though , default had been made in answering the bill of complaint in this cause.
4. That either of the parties be at liberty to apply to this Court for such directions as to the custody and control of said infant children during the pendency of this suit as to them seem meet and proper.
5: That the defendant pay the costs of this motion to be taxed by the clerk of this Court.
Note. — It may not be without interest to give here the opinion of Judge Purcell delivered in the Orphans’ Court of the District, March 21st, 1863, upon a hearing of another branch of this, at that time, much litigated case, inasmuch as it presents, among other interesting questions, the views of that learned judge upon the very point afterwards raised and decided by the General Term in the foregoing opinion. It may be added that the opinion of Judge Purcell has never before been published.
Samuel Chase Barney vs. John W. DeKraft, et al. In the Orphans’ Court of the > District of Columbia,March 21st, j 1863.
In the above case this Court on the 25th day of January, 1862, pronounced a final decree appointing Dr. Harvey Lindsley (at discretion) guardian to the above
Said mandate was delivered to the clerk of this Court on the 4th day of March, 1863, the day after the said Circuit Court was abolished by Congress. The Circuit Court was the proper appellate tribunal, and this Court would feel bound to respect its mandate, but it appears from the certificate, under seal of the clerk of that Court, who was also clerk of the Court of Chancery, that on the 24th day of February, 1863, a bill in equity had been filed in behalf of said minor children, who were then in the custody of Dr„ Harvey Lindsley, their duly appointed guardian by this Court, the property being also in his possession; said bill alleging unfitness of said Barney because of gross immorality and incompetency, rendering him unfit to have the custody of the said minor children, or to have the management of their property; consequently, the said minor children became “ wards in chancery” from the filing the said bill and the issuing the process thereon, and service on said Samuel Chase Barney on 26th of February, which proceedings operated as a supersedeas to the action of all other courts and persons. (It was stated to this Court, and not denied by the opposite counsel, that the Circuit Court had agreed to hear an argument, and examine authorities, as to the propriety of having ordered the mandate, but did not, owing to some misunderstanding between the Court and counsel, B.. S. Coxe, Esq.) The above doctrine is very clearly stated by Judge Story, in his very able work upon Equity Jurisprudence, vol. 2, sections 1352 and 1353. He says, “Wherever a suit is instituted in the Court of Chancery relating to the person or property of an infant, although he is
In this case the rights of the father, as natural guardian, were involved, and he was by the Court adjudged unfit to have the custody of his children. Goodall vs. Harrison, 2d P. Williams, 562. Butler vs. Freemen, Ambler’s Reports, 302. 2d Bligh’s Reports, 137. Thus it will be seen that, by the foregoing high authorities, should this Court regard the mandate issued by the late Circuit Court, or “ do any other act affecting the person, property or state of the minors” from the time they became “ wards of chancery,” it would be guilty of contempt of the Court of Chancery. And may not the late Circuit Court have rendered themselves liable, the mandate having been issued 'subsequent to the filing of the said bill in behalf of the minor children ? ' Filing a bill in Chancery, on behalf of infants, makes them “wards of court” says Maddox in his Chancery Practice, vol. 1, page 432. See also the authorities referred to in the margin by the learned author.
Indeed, the Circuit Court on page 17 of their opinion already referred to, say that the Court of Chancery affords ample relief in the case of minors when properly invoked.
But if any doubts existed, as to the principle in chancery, as above stated from the foregoing authorities and facts, they were removed on the awarding of the injunction on
It is, therefore, ordered and decreed from the foregoing authorities and facts that the direction contained in the mandate above referred to, of the late Circuit Court, to cite Samuel Chase Barney to give bond and security as natural guardian to said minor children, within a reasonable time, is overruled.
See this opinion in the appendix.