Attkisson v. Usrey

• Decision Date: 15 March 1946
• Docket Number: 28165.
• Parties: ATTKISSON v. USREY et al.
• Court: Indiana Supreme Court

65 N.E.2d 489

224 Ind. 155

ATTKISSON v. USREY et al.

No. 28165.

Supreme Court of Indiana

March 15, 1946

Appeal from St. Joseph Probate Court; J. Clifford Potts, judge.

Pigg & Tennis and Bedwell, Bedwell &amp Haines, all of Sullivan, for appellant.

Jones Obenchain & Butler, of South Bend, for appellees.

STARR Judge.

The appellees filed this action in the St. Joseph Juvenile Court for the adoption of Lola Marie Petty, a minor, female child of eight years of age. The appellant, who is the mother of said minor, after due notice appeared and defended said action. From a judgment in favor of the appellees this appeal is prosecuted.

During the pendency of this cause the St. Joseph Probate Court was created, Acts of 1945, ch. 333, and this cause was then transferred from the St. Joseph Circuit Court sitting as a juvenile court, to the St. Joseph Probate Court, wherein said cause proceeded to final judgment.

Appellees contend that this appeal is governed by the statute which provides for appeals from juvenile courts being § 9-2858, Burns' 1942 Repl., and that said appeal not having been perfected within the time provided by said section the same should be dismissed. It must be noted, however, that after this case was begun and prior to the judgment entered therein, said last-mentioned statute was repealed as to juvenile cases by § 21 of ch. 356 of the Acts of 1945 which reads as follows: 'An appeal may be taken in juvenile cases from any final order or judgment of the juvenile court in the manner provided by law for appeals in criminal cases from circuit or criminal courts.'

At the time this action was started, exclusive jurisdiction of adoption matters was vested in the juvenile court except in counties where there was a separate probate court. § 9-2833, Burns' 1942 Repl. The adoption statute of the State of Indiana specifically provides, 'In any county of this state where there is now or may hereafter be established a separate probate court, such court shall have exclusive jurisdiction in all adoption matters.' § 3-115, Burns' 1943 Supp.

Section 11 of ch. 333, Acts of Indiana General Assembly 1945, which created the St. Joseph Probate Court, among other things provides that this court shall have exclusive original jurisdiction in all cases that now or may hereafter be conferred on juvenile courts of this state.

Section 22 of said ch. 333 of the Acts of 1945 provides, 'Any party may appeal to the supreme court or appellate court from the order or judgment of such court in any case where by existing or future laws of this state, an appeal may be had from an order or judgment of the circuit court; the appeal shall be regulated by the law regulating appeals from the circuit court to the appellate and supreme courts, so far as applicable. An appeal may also be taken to the appellate and supreme courts in the same manner and in like cases as from circuit courts, or the judge thereof.'

The last sentence of the above-quoted § 22 in speaking of 'like cases' could only refer to cases in which the circuit court had jurisdiction and could not refer to adoption cases as the circuit court did not have jurisdiction in adoption matters at the time that this act was passed. Such court in trying an adoption case is a juvenile court. Tyler v. State, Ind.Sup.1945, 62 N.E.2d 626. There having been a final judgment herein, this appeal is made in the same manner as appeals are perfected from final judgments under the Civil Code and the rules of this court. When this cause was transferred to the probate court, it was entirely divorced from the juvenile court and was not subject to any of the provisions of the Juvenile Court Act including provisions therein, if any, for a special appeal. We hold therefore that this appeal was properly taken.

Our statute concerning the adoption of heirs, § 3-101 et seq., Burns' 1933 Supp., contains a section (3-118) which provides that upon the filing of a petition for adoption, one copy of the same shall be forwarded to the state department of public welfare and one copy to a qualified agency as defined in § 3-117 of said act; and that not more than sixty days from the date of such reference of said petition such agency shall submit to the court a written report of its investigation and its recommendation as to the advisability of such adoption. This report and recommendation are filed with the adoption proceedings and become a part thereof. It is also provided this report shall, so far as possible, include but not be limited to the former environment and antecedents of such child, and the fitness of such child for adoption and the suitability of the proposed home for such child. It is further provided that the report shall be summarily considered by the court and that the report and recommendation of said welfare board shall not be binding on the court but shall be advisory only. § 3-118, Burns' 1933 Supp.

Section 3-119 of said act, among other things, provides that the report or reports of such investigation shall be deemed of a confidential nature, and that all files and all records of the court pertaining to such proceedings shall be in the custody of the clerk of the court and shall not be open for inspection except upon order of the court for good cause shown; that all...