Walker v. Edwards

MORGAN, C. J.

Appellant applied to the district court for a writ of habeas corpus alleging, among other things, that he was the guardian of the person of Mary Bush, an infant, who was under the unlawful control and restraint of respondents. The writ was issued and respondents answered the allegations in the petition. At the hearing many witnesses were examined, and the judge questioned the child, who was between ten and eleven years old, in private. - Findings of fact were made and judgment entered that the child be returned to the care and custody of respondents. The appeal is from the judgment.

The controlling facts found are as follows: That appellant is the guardian of Mary Bush; that her parents died in January, 1915, leaving three children, of which Mary is the oldest ; that her mother, who survived the father by a few days, requested appellant to take the children and find suitable homes for them; that the parents desired the children brought up in the teachings of the religious denomination to which they and appellant belonged; that respondent, Fern Edwards, is of that sect, the other respondent, her husband, is not but attends its services; that before the death of the mother, appellant placed Mary in the home of a neighbor until a permanent home could be found for her;.that she remained there until May, 1915, when, with the consent of appellant and his wife, she was placed in custody of respondents with the request that they provide her a permanent home; that she was received into their home upon such request and that they have at all times since then provided her with “the necessaries, comforts and pleasures of life, supplied her with excellent educational facilities, medical aid, proper home training, and in all respects treated her as their own child, until there has at this time grown up feelings, ties and relations between this child and her adopted parents which cannot now be broken by separation without inestimable injury to the welfare of the child”; that respondents have the inclination and ability to provide her with all necessary mental, moral and physical training required by a child of her age and temperament and a home which cannot, under the circumstances, be excelled; that she has no property and it is for her best interest and welfare that she remain in the care and custody of respondents. These findings are supported by the evidence.

In a case of this kind the trial court will, in the exercise of its discretion, look to and be governed by the welfare of the child (Andrino v. Yates, 12 Ida. 618, 87 Pac. 787; In re Martin, 29 Ida. 716, 161 Pac. 573; Allen v. Williams, 31 Ida. 309, 171 Pac. 493), and the rule applies that the judgment will not be disturbed because of conflict in the evidence if there is sufficient proof, if uneontradieted, to sustain it. (Jain v. Priest, 30 Ida. 273, 164 Pac. 364.)

The judgment is affirmed. Costs are awarded to respondents. i

Rice, J., concurs.