The San Francisco call., 1897-04-15
A Scene of M xed Joy and Sor.
row in Court Took Place
Yesterday.
Tears of Regret end Exultation Over
the R su Of the Great
Kidnapping Case.

The little girl over whose custody the
contest was made Joined in the lamenta-
tions of her foster mother. and the SER
vices of several special officers were re-
CURED to keep the manifestations of ex-
cltement within bounds.
Ii there be any parents who are slack or
cold In devotion to their lawfully begot-
ten children they would there have re-
ceived a lesson impressing them with the
love which is sometimes felt for illegiti-
mate offsprlns, as well as the devotion
and affection that is aroused in the heart
of foster parents.
ihe present case promises to be hi stori-
cat IN Californian Jurisprudence, as th e
supreme Court will be called on to finally
dispose OF the questions involved.
s. Mrs; q Artenay applied for letters OF
guardianship. alleging herself to be the
mother OF the child and able to properly
rear and care for it,
1t appeared from the records that Effie
was born out of wedlock, and that when
the little one was days old Mrs q 'Arte-
nay, then known as Miss Sarah Mcguire
signed paper relinQuishing all right to
the possession of the child forever and
giving it TO Mrs. Holstrom of Empire
City. Or, 10 adopt and rear as her own.
1t was under the authority of this paper
ana the TACT that she had cared for the
cnlio from It's INFANCY, that Mrs. Holstrom
claimed the right to its custody
In the early stages of the controversy
Ofhcer Frank Kane of the Society for the
Prevention OF Cruelty to Children took
torclble possession OF the child by enter
ing the home of Mrs. Holstrom without
warrant and Carrying the child there
from Notwithstanding the protests of
father. For this Mr.. Kane was found
guilty OF assault, as it was held by Judge
Campbell that the officer was net justified
IN such a proceeding
Mrs. d Artenay and her husband were
the first on the scene yesterday afternoon.
They were accompanied by Matt l. SuIli-
van. their attorney, and were quickly sur
rounded by sympathizers.
Mr.. and Mrs. Holstrom entered soon
aiterward, the foster-mother bearing in
her arms the pretty little Etfie, over the
custody OF whom there has been so much
discussion. Etfie was charmingly attlred
In a summer suit of becoming white and
bue, with sun hat with graceful pri,n
Her wardrobe was worthy of the casion,
which may turn out to be the most i'm
portant of her life.
Attorney Eugene II. Deuprey, repre-.
senting the claims OF the foster mother.
added his presence to the Holstrom
phalanx, which in numbers exceeded the
d. Artenay contingent.
1t was 2 o'clock when Judge Seawell
ascended the bench, and at once great
hush fell upon the throng. Without delay
Judge Seawell adjusted his spectacles and
with judicial calmness read his decision
that meant so much for so many in the
courtroom, and more than all for little
Effie.
Following is the full text of Judge Sea.
Wells opinion:
Section 1851 of the Code of Civil Procedure
provides as follows:
The father or mother OF minor child under
the age of Ii years, if found by the court COM
petent TO discharge the duties of guardian
ship, is entitled 10 be appointed guardian of
such minor child in preference 10 any other
person.
This is very strong language and if it were
the only statutory proVIsio upon the sub
pointed guardian of her child, she being COM
petent to discharge the duties of guardian
ship, would be incontestable.
The absolute right which thus appears to
be given to the father or mother is neverthe-
less controlled BY the sections of the Civil Code
on the same subject. In constituting their va
Civil Procedure are to be considered as parts
OF the anne statute. See Political Code, Sec
ton 44S0.
The oest interest of the child in respect to
its temporal and its mental and moral well
fare is, by section 246 of the Civil Code de-
clared 10 be the consideration by which the
court is TO be guided in awarding the custody
OF minor or in appointing a general guar
dian.
The same section provides that of two per-
sons equally entitled 10 the custody in other
respects preference is to be given to parent
In the case OF a parent who has reared his
child from its birth and has been guilty of no
neglect of his parental duties the law con-
clusiyeiy presumes that the child's in terests
would be best served by in trusting it to the
ardianshlp in when nature placed it.
The application of Mrs. d'Artenay is resisted
upon the ground that iEasmuch she gave
the child, few days after its birth. 10 Mrs.
Holstrom to raise educate and adopt as her
ha haC hQ M dnn cd a hata
rights she originally had 10 the child, who is
now practically stranger TO her; and that as
the child has been properly supported and
cared for by Mrs. Hoistrom. and new ties have
grown up between them, which 1t would be
painful 10 the child to sever, the happiness
and welfare OF the child would be best secured
by per mittlng her TO remain in her present
custody.
such was the view recently expressed by ma
after a hasty consideration of The case, the
correctness of which further reflection caused
me to doubt.
In determining the question I 90 not con-
slider myself al liberty consider the feelings
of Mrs Hostrom, however much they may
excite my sympathy. The paramount right
OF mother TO the custody OF her child can
only be de;Iied when the best interests OF the
child. in respect to its tenn poral and its men-
tal welfare. so require.
mother cannot, except in the case of an
apprentice, by transfer to q stranger, de-
prive herself of the rights gwen to or duties
imposed upon her toward her children. The
Iignts ana duties OF parent in respect to
her child by Mrs. d'Artenay so soon after its
blrth ana her subsequent conduct, can be
considered SO far as they tend to show her
unhtness for the Office of guardian.
In judging the conduct OF Mrs. d Artenay we
must tax into consideration the circum-
stances under which she acted. She was poor
and dependent for support upon her. own
la bor. She must have realized the difficulty
which an unmarried woman with q child
would have in Obtaining respectable EMPLOY
ment In her poverty aud despair she ac-
cepted the first offer made by Mrs. Holstrom
TO adopt the child as her own. She expected
that the child would be taken to Oregon ard
that she would never see ii again.
The child. however, brought back to
San Francisco, and from time TO time was
seen by her mother, who in the meantime
was happily married. The course OF subse-
quent events revived the mothers love for
the child. and finally eliminated in the trans-
action which gave rise to the present contro-
versy.
No legal proceedings were taken by Mrs.
Holstrom, SO far as the evidence shows, for
the adoption of the child.
am satisfied that in reaching the conclu-
sion heretofore announced in this case. TOO
N ucn stress was laid upon the fondness of the
enid for her foster. other. She is only four
years and four months Old At such an early
age the feelings are not so fixed that separa-
n .ion from her foster-mother Will cause the
cnIu @ any Lermanent PAIN The grief OF very
'oune children is proyerbially. short-llYed,