Patterson v. Bruegger

THOMPSON (IRA F.), J.

This is an appeal from a judgment denying and dismissing a petition for the appointment of appellant as general guardian of Agnes Patterson Bruegger, a minor, and the daughter of Clinton Bruegger, the respondent. There were three proceedings pending in the trial court all having to do with the custody of this child, who at the time of trial was about seven years of age. One was a petition on the part of the appellant here to have it declared that her grandchild was abandoned by her father and free from his care and control; another was a

habeas corpus

proceeding instituted by the father against the maternal grandparents; and the third was the proceeding which gives rise to this appeal. The three proceedings were tried at the same time, it having been stipulated that all of the testimony might be considered as testimony in the guardianship proceeding. By reason of the failure of counsel to agree to all the facts or to direct our attention to those portions of the transcript where we might find the testimony referred to by them in their briefs we have assumed the burden of reading the entire testimony, a burden which counsel ought not to expect us to undertake, and which except for the appealing character of this ease we might not have been willing to shoulder. This observation is inserted not only as a warning but also with the hope that counsel in the future will have regard for the number of cases with which the appellate tribunals are inundated and endeavor to perform those tasks with which they are properly chargeable in such a way as to lighten the labors and save the time of those whose duty it is to review the records

[591]

The appellant advances two reasons why the judgment should be reversed, the first of which is that the testimony adduced in the trial court was sufficient to prove a legal abandonment, and the other that the testimony was sufficient to prove that the father was not a fit and proper person to have the custody of the child. Acting upon the assumption that appellant intended to state that the evidence was insufficient to support the opposite conclusions we have culled from the record testimony which amply supports the result arrived at by the trial court.

Mrs. Bruegger is the second wife of the respondent. At the time of the death of his first wife, some time in 1920, the respondent and his daughter were living with the appellant and her husband. They continued to live there until June, 1921. Respondent married the present Mrs. Bruegger July 3, 1921, and built himself a modest yet substantial home in Eagle "Rock, which has been very nicely furnished and where the respondent has continued to reside. Agnes, being of very tender years, was allowed to temporarily remain with her maternal grandparents, but when the respondent attempted to obtain the custody and control of his child, he was obliged by reason of the refusal of the grandparents to surrender her, to secure his relief through a proceeding in