Daily capital journal. (Salem, Oregon) 1903-1919, 1912-01-13
OREGON SUPREME
COURT DECISIONS
Matthews V. Matthews, MultnOmah
Decided January 9, 1912.
CONTINUED from yesterdays Daily)

Continued from yesterdays Daily)
shows that the appellant is engaged
in business. and much better able to
support the child then the respond
ent. and its age and sex favor his be-
ing given such a preference We are
of the opinion, in the absence of a
finding and proof, that it would have
been improper to award the care and
custody of the child to the appellant;
the circuit court was not justified N
giving the respondent the preference
in that regard" here seems to be a
hiatus between the premise laid down
by the court, namely: that the father
was entitled to the custody of the min
or, and he final conclusion reached -
that the custody should be given to
the grandfather. The fact seems to
be that the court did what courts
usually do in these cases, gave the
custody of the child to the person
most likely to look after its welfare.
1t is true that the court incidentally
mentions the fact that no finding had
been made that the father was an
improper person to be entrusted with
the care of the infant, but, as we
shall presently show, such finding
would have had no controlling influ-
ence if it had been made.
Barnes V. Long, "a Or. 54S, was a
habeas corpus proceeding brought ty
the father of a minor against its ma
ternal grandmother The mother
had been given the custody of the
child in divorce proceedings, and sub
sequently died The grandmother,
without any order of the court, at
tempted to retain its custody as
against the father The court held,
that, in the absence of any showing
that the father was an improper per-
son to care for the child, he was en-
titled to its custody. The case does
no seem to be in point here.
If we take the findings here as i'm
porting absolute verify, it appears
that the plaintiff is not an adulteress
and that she is a woman of good
moral character who has been guilty
Of certain indiscreet conduct whi III
age and experience will no doubt cor
rect The trial judge had the parties
before him and heard the testimony
and, in the absence of these, we must
conclude that he found correctly. II
defendant had desired an affirmative
hnding as to his qualifications to
care for the child, he no doubt could
have obtained it by a request to that
effect 1t appears that the child is
a little girl under four years of age
and the court no doubt concluded
and perhasp correctly, that she
would for the present, be better off
in the care of her mother than any
where else, and we are not disposed
to reverse his decree.
In addition to what has already
been said, we do not feel that as a
matter Of law, we have any iurisdic-
tion to pass on the matter on this
appeal. Suits in equity are tried de
novo' in this court. While the find
ings of the lower court in an equity
case may be, to some extent, advls-
ory in cases where the testimony is
conflicting and where the circuit
Judge had an opportunity of hearing
and seeing the witnesses and thereby
Judging of their credibility; vet when
brought here on appeal, unaccom-
panied by the testimony, they present
nothing from which this court can
hnd any fact or base any conclusion
Of law. Upon appeal in such cases
this court must mike its own find
ings and this it cannot do in the alb
sence of testimony. The reason for
this is plain. A court may make a
wrong finding or one not justified by
the testimony and yet render a COR
rect and righteous decree. In this
case the court found that the plain
tin was not immora, but that she had
been indiscreet, 1t might be that
with the testimony before us we
would conclude that she was both or
neither. We are not concerned with
The findings of the lower court but
with the facts produced before it on
the trial and these are not before us
Following this view it has been
many times held by this court, that
an appeal, which brings up only the
decree and findings Of the lower
court presents only one question for
review here namely; the sulficiencv
of the pleadings.
Howe V. Patterson. ! Or $50 :, =,