
    The Children’s Home of Marion County et al. v. Fetter et al.
    
      Proceedings in error—Will not be dismissed as to parties to judgment—Because stranger joins, when—Juvenile courts are courts of record, when—Records conclusive and cannot be assailed, when—Section 1639 set seq., General Code—Habeas corpus— Will not lie against institution—In which juvenile court has committed child, when.
    
    1. Where a judgment is rendered against two or more parties, they may unite in prosecuting error and the proceeding in error will not be dismissed as to them by the reviewing court, although it appear that a stranger to the judgment has joined with them in the petition in error in asking for a review of the judgment. •
    2. The probate courts of this state acting as juvenile courts under the provisions of Section 1639 et seq., General Code, are courts of record and their judgments, where jurisdiction of the person and subject-matter has been acquired and no fraud has inter' vened, are conclusive and can be assailed in no other court in an independent proceeding.
    3. Where a delinquent child has become a ward of the juvenile court and it has been committed to an institution, under the provisions of the General Code relating to the juvenile court, a proceedings in habeas corpus by á parent against the institution or its officert for the custody of the child will not lie.
    (No. 14251
    Decided March 17, 1914.)
    Error to the Court of Appeals of Marion county.
    Minnie Fetter, on April 23, 1913, filed an application in the court of appeals of Marion county in which she represented that she was the mother of Howard Fetter, a minor nine years of age, that she was entitled to his custody, that she was unlawfully deprived thereof and that said minor was restrained of his liberty by Sylvester Hurr, superintendent of the County Children’s Home of Marion county, Ohio, at which home he was unlawfully detained. She asked that a writ of habeas corpus be issued and that said Howard Fetter be discharged from said illegal restraint.
    To this application was attached, as an exhibit, a certified copy of the record of the proceedings theretofore had in the probate or juvenile court of Marion county “In the matter of Howard Fetter, a minor under seventeen years of age and a juvenile delinquent,” including the order of the juvenile court committing Howard Fetter to the Children’s Home of Marion county.
    It appears from this exhibit that on March 12, 1912, the truant officer of the city of Marion filed in the juvenile court an affidavit setting forth that Howard Fetter appeared to be delinquent or neglected, and that thereupon he and William P. Fet"ter and said Minnie Fetter, his parents, were duly-cited to appear in court.
    That on March 17, 1912, the juvenile court made the following order:
    “March 13, 1912. This day this case came on fbr hearing. The said child was brought before the court and it appearing that the citation heretofore issued has been duly served, and that all persons interested are now before the court. And the judge having heard the evidence and being fully advised in the premises, finds that said Howard Fetter , is under the age of seventeen years, to- , wit, about the age of nine years; and is' a delinquent child, as alleged in the petition; that he is „ incorrigible and by his conduct in school interferes with the progress thereof and with his own educational welfare due to the estrangement between W. P. Fetter, his father, and Minnie Fetter, his mother, and therefore comes into the custody of the court, and will continue for all necessary purposes of discipline and protection, a ward of the court, until he shall attain the age of twenty-one years.
    “There upon motion of the father and agreed to by the mother, it is ordered that until the further, order of the judge the said child is permitted and ordered to make his home with his . father on Monday, Tuesday, Wednesday and Thursday of each week, and with his mother the remainder of the week, Friday, Saturday arid Sunday, and stand subject to such other discipline, disposition and conditions as may be imposed by ■ the judge during its term of probation, and so long ' as such child shall in the opinion of the judge, comply with the conditions and terms of its probation, ¡■final judgment herein, or final commitment to any other place, person, or institution is hereby stayed and suspended, such suspended judgment, however, to be subject to the direction and conditions imposed ■ by the judge for such time as in the opinion of the judge such child has been. sufficiently corrected of its delinquency and final judgment entered herein, otherwise committing or disposing of the custody of such child or discharging it from any. further control by the judge-in this cause.”
    That on March 26, 1913, William P. Fetter, the father of the child, filed a motion in the juvenile court asking for a modification of this order, in which motion he represented that several weeks prior to March 26, 1913, Minnie Fetter, the mother, left Marion county, abandoning said child, who was .a ward of the court under an order made as to care, protection and custody, that he, the father, had in every way abided by said order, that the mother had wholly disregarded the same, that she had removed to the city of Sandusky, Ohio, where ¡she was working in a laundry, rooming with a •family and being in no position to care for or -in any- way to look after the child, and showed by leaving him that she was little concerned about ¡his care, custody or welfare. He asked the court .to "modify-the order'of March 13, 1912, in such respect as to the cQurt seemed just and for the best interests of the child.
    
      It further appears, from this exhibit, that upon March 28, 1913, the following order was entered on the record of the juvenile court:
    “March 28, 1913. This day this cause came on to be heard upon the motion of William P. Fetter, praying for a modification of the order heretofore made on the thirteenth day of March, 1912, wherein the time of custody of said child, Howard Fetter, was divided between the father and mother, who were separated and living apart, and it appearing that all parties interested are now before the court.
    “And the judge having heard the evidence and being fully advised in the premises, finds that said former order of March 13, 1912, should be and the same hereby is modified. It further appearing to the judge that because of the estrangement of the parents it would now be to the best interests of said child to remove him from the custody of both William P. Fetter and Minnie Fetter, his parents.
    “It is therefore ordered and adjudged that said child, Howard Fetter, be committed to the Marion County Children’s Home, Marion, Ohio, to be there received, cared for, educated and kept, subject to the control of and until discharged by the proper authorities of said institution, or until further orders of this court upon the proper adjustment of the differences of said parents.
    “It is further ordered that William P. Fetter pay to the superintendent of said Marion County Children’s Home, weekly, for his keeping therein and that a warrant to convey issue to S. N. Titus, probation officer, to convey said child to said institution, and that due return thereof be made to this office.”
    That the said Howard Fetter, on March 29, 1913, upon a warrant issued for that purpose was delivered to the Children’s Home—to the superintendent thereof.
    Upon the filing of the application of Minnie Fetter, a writ of habeas corpus was issued by the court of appeals commanding the sheriff of the county to take the child imprisoned and restrained of his liberty by Sylvester C. Hurr, superintendent of the Children’s Home, and have said child before said court and to summon Sylvester C. Hurr to appear to show the cause of the taking and detention of said child. A copy of the writ was served upon the superintendent of the Children’s Home, and on May 3, 1913, he filed an answer to the complaint of Minnie Fetter, which answer consisted of five defenses.
    In the first defense he averred that the complaint or so-called affidavit in habeas corpus did not state facts sufficient to warrant a writ or any order or judgment; in the second defense he averred that the court of appeals had no jurisdiction by law conferred upon it in habeas corpus proceedings; in the third defense he averred that upon the face of the record habeas corpus proceedings could not be maintained; in the fourth defense he denied that he was then or ever had been unlawfully restraining Howard Fetter of his liberty, and denied that Minnie Fetter was entitled to the custody of the child; in the fifth defense he set out in substance the proceedings had in the-juvenile court, a certified copy of .the record of which was attached to the application filed by the mother, and averred further that several months after the order and decree of March 13, 1912, Minnie Fetter, who was then living separate ajad apart from her husband, left Marion county , and took up her abode in Sandusky city, Erie county, Ohio, where, in the month of December, 1912, she instituted a proceeding in divorce against her husband,, in which she asked for alimony and the custody of the child, and that on March.'24, 1913, said .proceeding was heard in the court of common,pleas of Erie county, and that court, ordered that Minnie Fetter should have the sole and exclusive custody of the child. Fie further averred that neither the sheriff of Marion county, nor said juvenile court, nor said Children’s Flome or the superintendent thereof, were parties to said divorce and alimony proceedings; that the, only parties to the suit were Minnie Fetter and William P. Fetter, and that by virtue of the premises said court of common pleas had no jurisdiction or authority to make any order respecting the custody and control of the child; that said Minnie Fetter did not a.t any time, prior to the decree of the common pleas court of Erie county respecting the custody of the child, make known to said court that the juvenile court of Marion county had prior to that time assumed and retained the jurisdiction and authority over said child. Said superintendent further averred that the orders and decree of the juvenile court were in full force and. effect; that .the same had not been stayed or appealed from; that no proceedings had been instituted to reverse, modify or change the same; that said Minnie Fetter had at no time made application to the juvenile court to alter or modify its order or to place the child in her custody; that he had the custody of said child as superintendent of the Children’s Home of Marion county, by virtue of a commitment paper under seal of the probate or juvenile court of Marion county, and that said custody was legal and lawful by virtue of said commitment, and that by reason thereof Howard Fetter was not restrained by him as such superintendent unlawfully or illegally. He asked that said habeas corpus proceeding be dismissed and that the custody of said Howard Fetter be continued in him as such superintendent.
    • Answers were filed by John C. Francis, the sheriff of Marion county, and William P. Fetter, the father, on the same date, which answers are practically identical with the answer of the superintendent of the Children’s Home. No replies were filed to these answers.
    On May 16, 1913, the court of appeals ordered that the determination of the cause be reserved for twenty days to afford opportunity for application for a modification or vacation by the probate or juvenile- court of Marion county, Ohio, of its order of March 28, 1913, touching the custody of Howard Fétter, or to the trustees of the Children’s Home for the parole or discharge of the child from the home.
    On June 18, 1913, the cause was heard on the petition and the evidence, and the court of appeals found that Howard Fetter was unlawfully detained by the officers and agents of the Children’s Home of Marion county, and that Minnie Fecter was entitled to his custody. It was ordered that Howard Fetter be forthwith discharged from such detention; that Minnie Fetter, the mother, have his custody; that said officers and agents of the Children’s Home deliver said child to Minnie Fetter, and that the Children’s Home pay the costs of the proceeding.
    ■ A motion for a new trial was filed by the Children’s Home and its superintendent, which motion was overruled. A bill of exceptions was taken in which it is certified by the court of appeals that on the hearing and trial of the cause “it was admitted by the respondent as a fact that the said Minnie Fetter would be a fit and suitable person to have the custody and control of the said child, Howard Fetter; and plaintiff introduced no other evidence in the cause, and respondent introduced no other or further evidence in the cause, and thereupon both sides rested, and the foregoing was all the evidence introduced on the hearing of said cause.”
    The Children’s Home of Marion county, Sylvester C. Hurr as superintendent of said home, and William P. Fetter, the father, filed a petition in error in this court in which they ask that- the judgment of the court of appeals be reversed and that final judgment be rendered in their favor.
    After the filing of the printed record in this court, counsel for Minnie Fetter filed a motion to dismiss this action and this proceeding in error and. the petition in error, for the reason that there is a misjoinder of parties plaintiff in error, that the several causes of action are improperly joined and that the petition in error does not state facts which constitute a cause of action. A consideration-of this motion was reserved until the disposition of the case on its merits.
    
      Mr. Homer Johnson, prosecuting attorney, and Messrs. Finley & Gallinger, for plaintiffs in error.
    
      Mr. H. L. Peeke, for defendants in error.
   Newman, J.

Counsel in support of their motion to dismiss this proceeding rely upon Chapman Mfg. Co. v. Taylor, 61 Ohio St., 394. There separate judgments were rendered against separate parties on separate causes of action in favor of the same party. The parties against whom such separate judgments were rendered united in prosecuting error. The'court held that there, was a misjoinder of parties plaintiff and dismissed the proceeding in error. The law of that case does not apply here where the judgment was rendered against the Children’s Home and its superintendent—neither separate judgments nor judgments based upon separate causes of action. There is no reason why these two parties may not unite in a proceeding' for a review of this adverse judgment. But it is claimed that W. P. Fetter is not entitled to become a party to this proceeding because no judgment was rendered against him. Conceding this, his joining in the petition here does not invalidate the proceeding in error as to the other two parties. The petition in error is in usual form. It recites the rendition of the judgment and assigns the several errors upon which the parties rely. Then follows the prayer for a reversal and for final judgment in favor of plaintiffs in error. This proceeding, so far as the Children’s Home and its superintendent are concerned, is properly here, and the motion to dismiss is therefore overruled.

Counsel for plaintiffs in error challenge the judgment of the court of appeals upon the grounds that the complaint in habeas corpus was insufficient and that the court of appeals had no jurisdiction of the subject-matter.

The contentions of counsel for Minnie Fetter, the mother, are, that the juvenile court never had jurisdiction; that if it had, it lost it, because it could make but one of two orders—it could commit ■the boy to the Children’s Home or it could discharge .him—it had no authority to divide the custody of the boy between the parents; that if the juvenile court had jurisdiction, its rights were wholly subordinate to the right of either parent if ■fit, able and willing to care for the child; that the court of common pleas of Erie county had exclusive jurisdiction of the parties and subject-matter and custody of the child.

An affidavit as authorized by Section 1647, General Code, was filed by the truant officer of Marion ■in the probate court, acting as a juvenile court, ■with the jurisdiction and powers conferred upon it by Section 1639 et seq.

A citation was issued to W. P. Fetter and Minnie Fetter, the parents having the custody and control of the child, as required by Section 1648. On March 13, 1912, the child was brought before the court, evidence was heard and a finding was made that he was under the age of seventeen, that he was incorrigible, that he was a delinquent child and that he came into the custody of the court and would continue for all necessary purposes of discipline and protection a ward of the court until he attained the age of twenty-one. In Section 1644, a “delinquent child” is defined, and includes, among others, a child under seventeen years of age that is incorrigible. Section 1643, prior to the amendment of April 28, 1913, was as follows: “When a child under the age of seventeen years comes into the custody of the court under the provisions of this chapter, such child shall continue for all necessary purposes of discipline and protection, a ward of the court, until he or she attains the age of twenty-one years. The power of the court over such child shall continue until the child attains such age.”

On March 13, 1912, by order of the juvenile court, on motion of the father, agreed to by the mother, Howard Fetter was permitted to make his home with his father on certain days of the week and with his mother on the remaining days, also to stand subject to such other discipline, disposition and conditions as might be imposed by the judge during the term of probation. It was further ordered that so long as the child should, in the opinion of the judge, comply with the conditions and terms of the probation, final judgment or final commitment to any other place, person or institution be stayed and suspended, such suspended judgment, however, to be subject to the directions and conditions imposed by the judge, “for such time as in the opinion of the judge such child has been sufficiently corrected of its delinquency and final judgment entered herein, otherwise committing or disposing of the custody of such child or discharging it from any further control by the judge in this cause.”

Counsel for the mother insist that the juvenile court had no authority to make this order, that it could commit the child to the Children’s Home or discharge it. We cannot agree with counsel, for, under the provisions of Section 1652, General Code, the court is authorized to make temporary provision for a child such as was made here, subject to be returned to the judge for further proceedings whenever such action might appear necessary.

Such action was necessary in this case, as shown by the records of the juvenile court in its finding of March 28, 1913, and it is immaterial that the matter was brought to the attention of the juvenile court by the father of the child after the decree in the divorce proceeding. The court speaks by its record, and it appears that all parties interested were before the court, that the court heard evidence on the subject and was convinced that there should be a modification of its former order in reference to'the custody of. the child. It did not, however, change its finding that the child' was a delinquent. It found that on account of the estrangement of the parents it would be to the best interests of the child to remove it from their custody, and it committed it to the Marion County Children’s Home, to be there received, cared for and educated, and kept subject to the control of and until discharged by the proper adjustment of differences of said parents. This order of the court, at the time of the proceeding in habeas corpus, was unreversed and unmodified and was in full force and effect.

The proceeding in Erie county was one in divorce, and the only parties’ there were Minnie Fetter and W. P. Fetter. As between them the common pleas court may have had the authority to determine which of the two was entitled to the custody of the child, but its order in no way could affect the order of the juvenile court under which, on March 13, 1912, the child became a ward of the juvenile court to continue as such until the age of twenty-one. Exclusive jurisdiction of the child and of the subject-matter was acquired by the juvenile court several months prior to the proceedings in divorce and was a continuing jurisdiction, and that the order of commitment to the Children’s Home was made subsequently to the decree in divorce in Erie county is wholly immaterial.

As required by Section 12164, General Code, a copy of the commitment of Howard Fetter to the Children’s Home was exhibited to the court of appeals with the complaint of Minnie Fetter, the mother. The exhibit attached to the complaint contained not only a copy of the-commitment but a certified copy of the entire proceedings had in the juvenile court. It appeared then to the court of appeals that Howard Fetter, alleged to be restrained of his liberty, was in the custody of the Children’s Home by virtue of an order of a court of record.

As has been repeatedly held by this court,, the probate courts of this state are courts of record, and their records import verity. Their judgments are binding and conclusive, where there is no fraud and when it appears that there was jurisdiction of the person and the subject-matter. The proceedings in the probate court of Marion county, acting as a juvenile court, were regular and it had jurisdiction to make the order of commitment.

We are of the opinion that the court of appeals was without authority to allow the writ of habeas corpus, for, under the provisions of Section 12165, the writ shall not be allowed when it appears that the. person alleged to be restrained of his liberty is in the custody of an officer by virtue of a judgment or order of a court of record and that the court had jurisdiction to issue the process, render the judgment or make the order.

Hoffman v. Hoffman, 15 Ohio St., 427, is cited by counsel for the mother. In that case it was held: ‘Where a court of common pleas, on rendering a decree of divorce, further decree the ‘custody, care, and control’ of the minor children of the marriage to one of the parties, a probate court, while such decree remains in force, cannot, as between the parties to the decree, legally interfere with the custody' sb-decreed, either by habeas corpus or letters of guardianship.”

This case, as we view it,-does not support the contention of counsel, but is, we think, an authority against their position. The court' there held that1 the jurisdiction of the court of common pleas of the subject of the custody of children in divorce cases is a continuing jurisdiction. In the case at bar, under the provisions of Section 1643, General Code, Howard Fetter came into the custody of the juvenile court- and the power of that court over him was continuing until he attained the age of twenty-one years. An independent proceéding in another court, even of higher jurisdiction, cannot be maintained to affect this order of a court of record and competent jurisdiction.

No finding of facts was made by the court of appeals. Counsel therefore insist upon the application-of the rule announced in McGrath v. Cowen, 57 Ohio St., 385: “Where, in a proceeding in error in this court, the record does not show an agreed statement or finding of the facts, but there is a bill of exceptions purporting to contain all the evidence, and the reversal of the judgment is sought on the ground that the undisputed facts, or those proven by uncontroverted testimony, require its reversal, it will be presumed, in support of the judgment, that all facts necessary to sustain it, which the evidence fairly tends to prove, were established to the satisfaction of the court whose judgment is under review.”

‘This rule has no application here. The only evidence in the case at bar was an admission by the respondent that Minnie Fetter would be a fit and suitable person to have the custody and control of the child. Conceding this to be true, in view of the finding of the juvenile court this fact could not confer jurisdiction of the subject-matter on the court of appeals. It would not authorize that court to nullify completely the action of the juvenile court. The court of appeals recognized the jurisdiction of the juvenile court over the subject-matter, for its order was reserved to afford opportunity for an application for a modification or vacation by the juvenile court of its order of March 28, 1913, or to the trustees of the Children’s Home for the parole or discharge of Howard Fetter. It doés not appear whether such application was made. But by the final order of the court of appeals the child was discharged from the institution and awarded to the custody of the mother. Counsel claim that “no fault was charged against Howard Fetter, but against the parents of the boy.” In view of the express finding of the juvenile court such a claim is, we think, not tenable. That court found expressly that the child was incorrigible and therefore a delinquent. True, it found that this delinquency was due to the estrangement between the parents, when it made its original order on March 13, 1912, and when the. modification of the order was made there was a finding that this condition still existed. Yet there was a positive finding upon evidence of a jurisdictional fact, viz., that the child was a delinquent. This finding was conclusive and could not be attacked in an independent proceeding in another court.

It is urged with some feeling by counsel for the mother that the jurisdiction of the juvenile court, even if it had any in this case, is subordinate to the right of the mother if she is fit, able and willing to care for the child.

The legislature in the exercise of its police power, in order to protect children and to remove them from evil influences, has established the juvenile court. When proceedings are regularly had in that court and there is a finding that the child is delinquent it becomes a ward of the court. In the interest of the child and in the interest of society the court can commit its custody to strangers or to an institution for its moral training and education over the objection of the parents. The presumption is that the juvenile court of Marion county, when it committed Howard Fetter to the Children’s Home, was acting with reference to the best interests and welfare of the child. It is in the power of that court, if it deem it advisable, to restore the child to its parents. But there is no authority for any other court to interfere, in an independent proceeding, with the custody of the child thus entrusted by law to the jurisdiction of the juvenile court.

When it appeared to the court of appeals that the juvenile court had acquired jurisdiction of the child, and that it had become a ward of that court, it should have dismissed the application for a writ of habeas corpus.

Counsel for plaintiffs in error insist .that all- the allegations in the fifth defense of the answer, of the superintendent of the Children’s. Home stand confessed and admitted to be true, for no reply was filed thereto. It is claimed by opposing counsel that the superintendent by going to trial without objection waived a reply. It is unnecessary to pass upon this question, for the uncontroverted facts precluded the court of appeals from acquiring jurisdiction. The questions presented for ,oqr determination were properly raised by the other defenses in the answer. .. ..

For the reasons we have given the judgment of the court of appeals is reversed and the application for a writ of habeas corpus is dismissed, the Children’s Flome of Marion county to have the custody of the child under the order of commitment made by the juvenile court.'

Judgment reversed and judgment for, plaintiffs -irt error.

Nichols, C. J., Sitauck, Johnson, Dcdnahue, Wanamaker and Wilkin, JJ., concur.  