Points Decided.

parents attempt to regain the custody of the children, the material evidence is evidence as to the conduct of the parents since the children were taken from them, and the exclusion of evidence of their conduct before that time on the ground of immateriality is not error. 4. Even if certain testimony of a physician should have been excluded on the ground of privileged communication, still the admission of it is not reversible error where the patient, who was also a witness, testified on her cross-examination to substantially everything to which the doctor testified. As to whether the testimony should have been admitted over the objection of appellant, there being nothing in the record to show that the witness expressly consented that the testimony might be given, quaere.

5. When a benevolent or charitable corporation is made the guardian of a child by order of the probate court under the provisions of an act of the 10th session, approved March 6, 1909, Sess. Laws 1909, p. 38, the probate court has the same control over such corporation as guardian as over any other guardian. Such guardianship may be terminated by said court in the same manner in which any other guardianship may be terminated.

6. While such corporation may voluntarily resign the guardianship or apply to the court for permission to surrender the children to the parents, the ultimate decision as to whether the guardianship shall be terminated or the children surrendered to the parents is with the probate court in each case.

7. Whenever it appears to the probate court on application of the ward or otherwise that the guardianship is no longer necessary, it may be terminated. Reasonable notice of the proceedings and termination of the guardianship should be given the guardian.

8. That certain order made by the probate court for Shoshone county in this case on October 2, 1915, has the force and effect of an order terminating the guardianship of the Idaho Children's Home Finding and Aid Society. Under the facts of this case the society had sufficient notice of the proceedings to be bound by such order. 9. Such benevolenet or charitable corporation, as guardian of minor children, has no authority to consent to their adoption when the children are not surrendered to it by the parents, but are committed to it as guardian by the probate court in a proceeding by which they are taken from the parents without their consent.

10. Under sec. 2703, Rev. Codes, a probate judge is not authorized to make an order of adoption of children without the consent of their parents, on the ground that such parents have been judicially deprived of their children on account of neglect, unless it appears in the record before such judge that such is a fact.

Points Decided.

11. A probate judge is not authorized to make an order of adoption of children without the consent of the parents on the ground that the parents have been judicially deprived of the custody of their children on account of neglect, unless it appears in the record before him that the parents have been permanently and absolutely deprived of such custody by a final and unconditional judgment of a court. An order of a probate court temporarily depriving the parents of the custody of their children, but granting them an opportunity to reclaim the children upon a proper showing of reform, is not such a judgment as dispenses with the necessity for the consent of the parents to an adoption proceeding.

12. That certain order of the probate court of Shoshone county in this case made on October 2, 1915, by which the children of appellants were removed from their custody and committed to the custody of the Idaho Children's Home Finding and Aid Society, as guardian, does not permanently and absolutely deprive the parents of the custody of their children, and is not such a final and unconditional judgment as dispenses with the necessity of the consent of the parents to adoption proceedings.

13. As to whether the parents must in all cases be notified of adoption proceedings in order to make the same binding upon them, quaere.

14. The parents of minor children, being themselves competent to transact their own business, and not otherwise unsuitable, are entitled to the guardianship and custody of said children. (Rev. Codes, sec. 5774.)

15. There being a substantial conflict in the evidence as to whether the parents have reformed and are now suitable persons to have the custody of their minor children, the findings of the district court in favor of the appellants on that point will not be disturbed by this court on appeal.

[As to the custody of children and to whom it should be awarded under habeas corpus, see note in 20 Am. Dec. 330.]

APPEAL from the District Court of the First Judicial District, for Shoshone County. Hon. William W. Woods, Judge.

On application of William Priest and Marie Priest, writs of habeas corpus were issued out of this court for William Priest and Ruth Priest, minor children of said applicants, and made returnable in the District Court of the First Judicial District.

Argument for Respondents.

Appeal is taken from the judgment of that court ordering the children returned to their parents. Affirmed.

John Nisbet, for Appellants.

(Adrino v.

The children's welfare is the guiding star. Yates, 12 Ida. 618, 87 Pac. 787; Schiltz v. Roenitz, 86 Wis. 31, 39 Am. St. 873, 56 N. W. 194, 21 L. R. A. 483; Jacob v. Sheets, 99 Ind. 328; In re Hamilton, 66 Kan. 754, 71 Pac. 817; Filbert v. Schroeder, 37 Neb. 571, 56 N. W. 307; Rice v. Rice, 21 Tex. 58; In re Hickey, 85 Kan. 556, 118 Pac. 56, 41 L. R. A., N. S., 564; In re Sharp, 15 Ida. 120, 96 Pac. 563, 18 L. R. A., N. S., 886.)

The probate court of Shoshone county made an order removing the Children's Home Finding and Aid Society from its guardianship, ex parte, and without in any manner notifying the guardian of such proceedings. Before this order could be binding on the society it would be necessary for the children to be in Shoshone county at the time of the filing of the petition; there must be a complaint to the probate court and a showing that the children are not being properly cared for; the guardian must have a reasonable notice of the proceeding. (In re Sharp, 15 Ida. 120, 96 Pac. 563, 18 L. R. A., N. S., 886; 1909 Sess. Laws, sec. 1, subn. (d), p. 39.)

Under sec. 2703, Rev. Codes, the guardian could consent to the adoption of the children, since the parents had been deprived of the children on account of their neglect of the children and their immoral conduct. (In re McRae, 189 N. Y. 142, 12 Ann. Cas. 505, 81 N. E. 956.)

Featherstone & Fox, for Respondents.

The jurisdiction of the supreme court in issuing a habeas corpus writ pursuant to its constitutional and statutory authority is not limited to the jurisdiction of the district where the children are. (People v. Booker, 51 Cal. 317.)

The probate courts are courts of original jurisdiction in the matter of guardianship (In re Sharp, 15 Ida. 120, 96 Pac. 563, 18 L. R. A., N. S., 886; secs. 3840, 3842, 3810, Rev. Codes),

Opinion of the Court-McCarthy, District Judge.

and courts of record. (Dewey v. Schreiber Implement Co., 12 Ida. 280, 85 Pac. 921.)

An order for adoption is not a judgment. (In re Williams, 102 Cal. 70-76, 41 Am. St. 163, 36 Pac. 407; Estate of Camp, 131 Cal. 469, 82 Am. St. 371, 63 Pac. 736; Estate of Stevens, 83 Cal. 322, 17 Am. St. 252, 23 Pac. 379.)

It is only in cases of the most imperative necessity where it appears that serious and permanent detriment to the rights and interest of the child are threatened, that courts will deprive the father and mother of the custody of the children. (In re Wilson (N. J.), 55 Atl. 160, 162; Markwell v. Pereles, 95 Wis. 406, 69 N. W. 798; Terry v. Johnson, 73 Neb. 653, 103 N. W. 319; Van Auken v. Wieman, 128 Iowa, 476, 104 N. W. 464.)

Where the evidence is conflicting, a finding will not be disturbed. (Cameron Lumber Co. v. Stack-Gibbs Lumber Co., 26 Ida. 626, 144 Pac. 1014; Jensen v. Bumgarner, 28 Ida. 706, 156 Pac. 114; Pomeroy v. Gordan, 25 Ida. 279, 137 Pac. 888; Wolf v. Eagleson, 29 Ida. 177, 157 Pac. 1122.)

An order appointing a guardian, or for the custody of a child, is temporary. (29 Cyc. 164; Turner v. Turner, 93 Miss. 167, 46 So. 413; McGough v. McGough, 136 Ala. 170, 33 So. 860; Patten v. Shapiro, 154 S. W. 687.)

Due process of law demands notice and an opportunity to be heard. (Mix v. County Commrs., 18 Ida. 695, 112 Pac. 215, 32 L. R. A., N. S., 534; Eagleson v. Rubin, 16 Ida. 92, 100 Pac. 765; Ex parte Martin, 29 Ida. 716, 161 Pac. 573; Scott v. McNeal, 154 U. S. 34-51, 14 Sup. Ct. 1108, 38 L. ed. 896; Sullivan v. People, 224 Ill. 468, 79 N. E. 695; Ex parte Livingston, 151 App. Div. 1, 135 N. Y. Supp. 328.)

MCCARTHY, District Judge. This case involves the question of the right to the custody of Ruth Priest and William Priest, the minor children of William Priest and Marie Priest, the respondents. The appellants, W. E. Tipton and Nellie Tipton, claim right to the custody of Ruth Priest, and the appellants, Charles Jain and Jessie Jain, claim right to the custody of William Priest. Two petitions for writs of habeas

Opinion of the Court-McCarthy, District Judge.

corpus were filed in the supreme court by the parents, one alleging that Ruth Priest is unlawfully detained by Mr. and Mrs. Tipton, and the other alleging that William Priest is unlawfully detained by Mr. and Mrs. Jain. A writ was issued in each case and made returnable in the district court of the first judicial district, before Honorable William W. Woods, District Judge. The two cases were consolidated for trial, and the district court ordered the children returned to their parents. From that order and judgment of the district court an appeal is prosecuted to this court by Mr. and Mrs. Tipton and Mr. and Mrs. Jain.

In September, 1914, a petition was filed in the probate court for Shoshone county, alleging that the appellants were not proper persons to have the care and custody of said minor children, and praying that a citation be issued by said court to appellants, requiring them to show cause why said children. should not be removed from their custody and control and surrendered to the Idaho Children's Home Finding and Aid Society and treated as wards of the court. A hearing was had. The court found that the appellants were at that time unfit and improper persons to have the control and custody of the said children, and adjudged that the said children should be removed from the custody and control of the appellants and surrendered to the Idaho Children's Home Finding and Aid Society, to be treated as wards of the court. The Idaho Children's Home Finding and Aid Society will hereafter be referred to in this opinion as the society. The children were taken to the branch home of the society at Lewiston, Idaho. The probate judge, the appellants, the representative of the society at Lewiston and everyone else concerned understood that the order was not a final order, permanently depriving the parents of the custody of the children, but merely an order temporarily depriving them of such custody until such time as they should reform and convince the court that they were again entitled to the children.

On Oct. 2, 1915, the probate judge, upon petition of the parents, found that they had reformed and were proper persons to have the care and custody of their children, and made