The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1908-01-04


and shown, or it must be alleged and
SHOWN the suit or action really and
substantially involves a controversy
arising under the constitution and
Jaws or the United States, and that it
also involves an amount in value
necessary to confer jurisdiction on the
court, requirements which if possible
In any case kindred in its nature to
the ti one here presented, are not. from
the very nature of things. and can not
be present in this case. While the
love and affection of natural or fos>
ter parent for an attractive infant is
oItent1mes SO priceless as to be in
capable of estimation in dollars, vet,
the constant care and attention of such
parent, willingly bestowed as a fruit
OF the love engendered by the love Of
the child in the heart of the parent,
results in a pecuniary loss rather than
a gain. The question presented here
is the legal rights Of the parties flow
ing from the deed of adoption of tho
child, coupled with the inquiry as to
the best interests of the child itself.
this court, but must be left to and met
In either some court Of general juris-
d1ction, or a court on which by ex-
press legislative authority juris diction
has been conferred. This court pos
sesses no such power or jurisdiction.
1t follows. from what has been
said, the writ must be denied and the
application dismissed from this court
I.
1T Is SO ordered
History of the Case.
The history of the case through the
United States courts as given by Judge
Pollock follows:
This is an application presented by
James G. Barclay and Stella Barclay,
his wife, citizens and residents Of the
state of New York, against Charlotte
E. Bleakley and Ora Thompson, her
mother, citizens and residents of this
state, to have investigated and deter
mined by this court who is lawfully
entitled to the care, custody. control,
education and society Of a female
child of the age of less than four
years, named in the application pre-
sented as Edith Barclay.
ION the presentation of the appli-
cation an order was made upon Mrs.
Bleakley and Mrs. Thompson to pro-
duce the body of the child in court.
which was done. Response has been
and the matter now stands submitted
to the court for final order on the ap-
pllcation. the response, and certain
written stipulations between the par
ties waving proofs. in which written
stipulations it is admitted the respec-
tive parties. and each of them, are
suitable persons to have the care, Gus
tody, control and education Of the "
FAINT child.
1T is further stipulated the only
question presented to this court for
its determination is, which one of the
parties. under the stipulation and
pleadings, has the legal right to such
custody.
'As cleaned from the record, the
facts, briefly summarized, are as fol-
lows:
Charlotte E. Bleakley is the nat
ural mother Of the child. Its prema-
ture birth occurred in a lying in hos
pital or sanitarium in the city of st.
Louis, Mo-, in the month of February,
1904, and it was placed by the person
in charge of such hospital or sani-
tarium in one Of the baby incubators
exhibited at the exposition held at that
! city during the year 1904. Stella Bar :
clay first saw the child while it was
being so exhibited in the incubator
development, and finally so much at
! tached to the child that she instituted
! an inquiry into its history and parent
| age with a view to its. final adoption
as her child. This inquiry revealed
the facts above stated and a CORE
| spondence between the mother of the
child and Mrs. Barclay, in many re-
spects most touching. indeed, resulted
| in the natural mother relinquishing all
claim to the child and the adoption of
the child by deed, formally executed
by the REALTORS and the natural mother
| of the child, and her husband, under
This deed was formally acknowledged
by, the parties, was executed with full
knowledge of all the facts. was de-
! livered to the Barclays with an order
on the person in charge Of the incu-
| bator exhibit at the exposition to de-
liver the child to them. which was
done, and the deed duly recorded in ST.
| Louis, Mo.
Thereafter the Barclays removed
to the city of Moline in the. state of
Illinois, taking with them the child
and caring for it until the 26th day
of May, 1905, on which day Charlotte
e. Bleakley, the mother. commenced
! habeas corpus proceedings in the cir
cult court of Rock Island county, I'LL
| nois, against the Barclays to recover
possession of the child, making the
| contention therein that the deed of
adoption executed by herself and her
husband to the Barclays for the child
was void on its face becaue not in
conformity with the laws of the state
| of Missouri under which it was exc
| cuted, and further claiming the same
was procured from her through fraud
| and duress In this proceedings her
husband refused to and did not join
her.
The Trial in Illinois.
"a trial of this proceedings was
| had in that court resulting in judg-
ment in favor of the mother for pos
! session of the child. In pursuance of
! this judgment and order the possession
of the child was transferred from it's
| foster parents to its natural mother,
WHO, lHeT0uDOI, DIT once l0Il the Stdl0
of Illinois and the jurisdiction of the
court she had invoked. ana came to the
city of Lawrence in this state.
Thereafter, and on the 5th day of
September, the Barclays commenced
proceedings in habeas corpus in the
district court of Douglas county this
state, to repossess themselves of the
child. On a trial Of the issues in
volved therein in that court, 1t was de-
terrnined the deed or adoption was
valid, judgment was entered in favor
of the Barclays for possession of the
child.
However, before such order could
be executed the respondent therein,
the mother Of the child, fled the juris-
diction of that court. Proceedings In
~ i,.Ie