Benton v. King

• Decision Date: 22 May 1923
• Citation: 250 S.W. 1002,199 Ky. 307
• Parties: BENTON v. KING.
• Court: Kentucky Court of Appeals

250 S.W. 1002

199 Ky. 307

BENTON v. KING.

Court of Appeals of Kentucky.

May 22, 1923

Appeal from Circuit Court, Jefferson County, Chancery Branch, Second Division.

Proceedings by John Thomas and wife for the adoption of Annie Stratton. From an order entered on petition of the adopted child, now Annie Stratton King, entering the judgment of adoption nunc pro tunc after the death of both the adopting parents William Benton as surviving second husband of the adopting wife appeals. Affirmed.

Lawrence S. Grauman, of Louisville, for appellant.

Humphrey Crawford & Middleton and Marvin H. Taylor, all of Louisville for appellee.

SAMPSON C.J.

This ex parte proceeding, instituted April 1, 1903, in the Jefferson circuit court by John Thomas and wife, Addie Thomas (colored), for the adoption of 13 year old Annie Stratton, her father, Samuel Stratton, consenting thereto in writing, and her mother being dead, was carried into judgment by nunc pro tunc order, entered in 1921. The petition, in part, reads:

"The petitioners, John Thomas and Addie Thomas, his wife, state that they are husband and wife; that they reside in the city of Louisville, Jefferson county, Ky. and that they are each of and above the age of 21 years; that by and with the consent of Samuel Stratton, the father and only surviving parent of Annie Stratton, an infant of the age of 13 years, they are desirous of adopting said Annie Stratton, and of making her capable of inheriting their estate, and they desire the care, custody and parental control of said infant, and to assume all the duties and responsibilities of parents towards her."

At the end of the petition is attached the consent of the father of the child, which reads:

"I hereby consent to the adoption of my child as prayed for herein, the mother being dead.

Samuel Stratton.

Attest: Sam'l Cleaver."

There was no objection to the adoption, and when the cause was submitted to the chancellor he examined the record and made the following indorsement on the back of the petition:

"Let this petition be filed and an order entered in accordance with the prayer of the petitioners. Asher E. Caruth, Judge. 4/1/03."

No other or further order was made at that time in the case. The child was in the custody and care of the petitioners, and the matter passed. Later John Thomas, one of the petitioners, died survived by his wife, the other petitioner, Annie Thomas, who later married William Benton and lived with him several years, departing this life May 18, 1921.

An administrator qualified and was about to turn over the estate to the husband, Benton, when the adopted daughter, Annie Stratton, now Annie Stratton King, of Chicago, by petition intervened and set up claim to the estate. When it was discovered that the judgment of adoption had not been entered in the aforementioned proceedings, the adopted daughter sought to have a nunc pro tunc order entered showing her adoption as of April 1, 1903. To this the late husband, Benton, objected. After hearing, the objection of Benton was overruled and the nunc pro tunc order entered. Benton appeals.

Courts of law and equity have from the earliest times possessed and exercised the power of making entries of judgments and decrees nunc pro tunc in proper cases, says 15 R. C. L. p 622, when such orders are necessary to prevent injustice to suits. The office of a judgment nunc pro tunc is to record some act of the court done at a former time which was not carried into the record, and the power of the court to make such entries is restricted to placing to record evidence of judicial action which has been actually taken. It may be used to make the record speak the truth, but not to make it speak what it did not speak but ought to have spoken. Hence a court in entering a judgment nunc pro tunc has no power to construe what the judgment means, but only to enter of record such judgment as had been formerly rendered, but which had not been entered of record as rendered. In a majority of jurisdictions the rule is recognized that no judgment can be entered or amended nunc pro tunc unless the amendment...