
    (84 South. 508)
    No. 23814.
    TARDY et al. v. CARRA et al.
    (Feb. 2, 1920.
    On the Merits, March 1, 1920.
    Rehearing Denied May 3, 1920.)
    
      (Syllabus by Editorial Staff.)
    
    1. Habeas corpus <&wkey;l 13(3) — Appeal lies in proceedings to recover custody of child.
    Under Const, art. 85, giving right to appeal in all matters of the custody of a child, appeal lies from a judgment in habeas corpus proceedings to recover the custody of a minor child, though it does not lie in similar proceedings to secure a release from incarceration. ,
    On the Merits.
    2. Parent and child &wkey;>2(2) — Foundling cannot be taken by parents without process from custody of those who reared her.
    Under Civ. Code, art. 213, providing that the foundling whom persons have received and brought up cannot be reclaimed by its parents without proof of taking by fraud or accident, or by any other relation without having first obtained the tutorship, a foundling cannot be taken, without process from those who have reared her for the past 7 years, even if it is for her welfare; the remedy being by proceedings in court if the child is neglected.
    O’Niell, J., dissenting.
    Appeal from Civil District Court, Parish of Orleans; Fred D. King, Judge.
    Habeas corpus proceedings by Mrs. Emma Tardy, wife of Joseph Henry Luwisch, and' husband, against Rev. Father Raymond Carra, and another, to obtain custody of a child. Judgment for defendants, and relators appeal.
    Motion to dismiss appeal denied, and judgment reversed and rendered in favor of relators.
    William V. Seeber, of New Orleans, for appellants.
    Benjamin T. Waldo and Sumter D. Marks, Jr., both of New Orleans, for appellees. •
   DAWKINS, J.

Appellees move to dismiss this appeal on the ground that this court has no appellate jurisdiction in habeas corpus proceedings.

This case is one involving the custody of a minor child. Plaintiffs claim the legal custody, and that defendants have forcibly taken and are now withholding said child without any color of lawful right or proceeding. It would seem that this court, under the circumstances, is specially vested with jurisdiction, under article 85 of the Constitution, giving the right to appeal to it in “all matters of adoption, emancipation, legitimacy, and custody of children.”

Counsel for plaintiff in motion has cited authority to the point that all the courts of this state are empowered, as a matter of original jurisdiction, to issue the writ of habeas corpus, and that, this power being equal or concurrent in each tribunal, there exists no right of appeal. However, those were cases dealing with the writ in its strict or literal sense, where the applicants were confined under some criminal charge, and the effect of the writ was merely to test the legality or sufficiency of the authority under which the person restrained was held. For this reason, the matter was merely preliminary to the subsequent trial, and it was found that in those circumstances there was no right of appeal.

However, in cases of the kind now under consideration, the child is not incarcerated, but the proceeding is invoked for the purpose of determining the question of its custody; the judgment is final, and, unless appealed from, may become res adjudicata as to the rights of the relators. The matter partakes of the nature of a civil action, and is therefore clearly distinguishable from the cases in which the applicants were held under a criminal prosecution. Prieto v. St. Alphonsus Convent of Mercy, 52 La. Ann. 681, 27 South. 153, 47 L. R. A. 656; State ex rel. Lasserre v. Michel, 105 La. 741, 30 South. 122, 54 L. R. A. 927; Ex parte Ryan, 124 La. 286, 50 South. 161.

For the reasons assigned, the motion to dismiss is denied.

O’NIELL, J., concurs in the decree.

On the Merits.

SOMMERVILLE, J.

Relators are husband and wife, and. reside in the parish of Jefferson. They had received, in the year 1912, from St. Vincent’s Orphan Asylum in New Orleans, a foundling, named Thomasine Roman, then a few months of age, to rear and care for as their own child. They allege that in July, 1919, a deputy sheriff of the parish of Jefferson, under instructions and directions of defendants, invaded their home, without warrant or authority, and took forcible possession of the child, Thomasine, now 7 years of age, and placed her in the custody and control of the authorities of St Alphonsus Asylum in the city of New Orleans. Relators further charge that they have made demand upon the sisters in charge of said asylum, and that they have been refused the return of their child. They then appealed to the civil district court for the parish of Orleans to compel defendants to return their said foster child to their custody and'control.

Defendants made answer, alleging that the child was neglected and uncared for, and. was not living in a proper place, and that they had taken custody and control of the said child for its general good.

The application of relators for a writ of habeas corpus was denied, and they have appealed.

The evidence shows that the child Thomasine is a foundling who was taken charge of by relators at the very tender age of a few months, and that they reared and cared for the child during seven years of its life. The law as found in article 213, C. C., is:

“The foundling, whom persons from charity have received and brought up; cannot be claimed by its father and mother,- unless they prove that the child was taken from them by force, fraud or accident.
‘“No other relation can claim a foundling without having first obtained the tutorship of the foundling and given security in a sum sufficient for the reimbursement of the expenses which it has incurred.”

And no one else, other than the father and mother, would have such right. Defendants certainly had no right to claim the child, and to take it forcibly from its foster parents.

The return of defendants contains matter which might properly be addressed to the courts of Jefferson if, in their opinion, the child was neglected.

The action of defendants was not only without authority of la.w, but in violation of law and of the rights of relators.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be annulled, avoided, and reversed, and that there now be judgment in favor of relators, Joseph Henry Luwisch and wife, and against Rev. Father Raymond' Carra and St. Alphonsus Orphan Asylum, ordering and commanding them to release the child, Thomasine Roman, and restore her to the care and keeping of Joseph Henry Luwisch and wife, and for costs.

See dissenting opinion of O’NIELL, J., 84 South. 509.  