Bryant v. Owens, No. 28906

Docket NºNo. 28906
Citation111 N.E.2d 804, 232 Ind. 237
Case DateApril 28, 1953
CourtSupreme Court of Indiana

Page 804

111 N.E.2d 804
232 Ind. 237
BRYANT et al.
v.
OWENS et al.
No. 28906.
Supreme Court of Indiana.
April 28, 1953.

[232 Ind. 238]

Page 805

Jacobs & Noland, Andrew Jacobs, Indianapolis, for appellants.

Waldo Hendrickson, Boonville, Paul F. Mason, Rockport, for appellees.

EMMERT, Chief Justice.

This is an appeal from a judgment entered November 8, 1951, hereafter referred to as the second judgment, which adopted a minor child as the child and heir of appellees, placed the care and custody of said child with appellees, and adjudged that appellants take nothing by their cross-petition for the custody of said child.

Appellees filed a motion to dismiss the appeal for failure of appellants to comply with the rules of this court regulating appeals, and also on the ground that the judge's certificate to the bill of exceptions containing the evidence on the hearing was [232 Ind. 239] defective. We granted appellants' motion to amend the transcript by attaching an index thereto. See Flanagan, Wiltrout and Hamilton, Indiana Trial and Appellate Practice, § 2342, p. 130. Before filing the motion to dismiss the appellees asked and obtained an extension of time to file their answer brief. Under Rule 2-16, this waived

Page 806

the defect, if any, in the judge's certificate to the bill of exceptions. Gamble v. Lewis, 1949, 227 Ind. 455, 85 N.E.2d 629. We find appellants have made a good faith effort to comply with our rules on briefs, and the motion to dismiss should be and the same is denied.

After the entry of the second judgment, the appellants employed other counsel who filed a motion for new trial, which was overruled. The assignment of errors here charges the trial court erred (1) in overruling the motion for new trial, and (2) in assuming and exercising jurisdiction over the cause and its subject matter. The motion for new trial stated as causes for a new trial that the decision was not sustained by sufficient evidence, was contrary to law, and that appellants had been denied due process of law in various respects not necessary to discuss in this opinion.

This controversy began when appellees, on the 16th day of January, 1950, filed a verified petition for the adoption of the infant child in cause number 632 on the juvenile records of said Warrick Circuit Court. The appellant mother appeared by counsel the 27th day of June, 1950, when the cause was set for hearing on July 28, 1950. The order book record then states that on the 27th day of July, 1950, 'the same being in an adjourned term, 1950, of the Warrick Circuit Court,' the appellants in said cause filed an answer in two paragraphs. The first paragraph put the petition at issue, but the second paragraph is in fact a cross-petition, which alleged[232 Ind. 240] that appellant Hazel Irene Duff Bryant was the mother of said child, that the mother married appellant Harold Bryant the 2nd day of December, 1949, that neither had given consent to the adoption, that the child was not a ward of any guardian, agency or department of public welfare, that appellants were entitled to the custody of said child.

On this July 27th the cause was heard and continued for argument on August 7, 1950, and on this latter day, by agreement the matter was continued.

On October 14, 1950, being in the September Term, 1950, the trial court entered a finding against the appellees on their petition for adoption, and against the appellants on their cross-petition for custody, upon which a judgment was duly entered, hereafter referred to as the first judgment.

The next order book entry shown by the record discloses that in the same cause number 632, before a successor judge of the Warrick Circuit Court, in vacation, evidence was heard on a petition for adoption and upon appellants' cross-petition. The finding (entered in the November Term 1951), on which the second judgment was based, copied in full appellees' petition for adoption, which is the same petition tried before the first finding and judgment.

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15 practice notes
  • White v. Evansville American Legion Home Association, No. 19999
    • United States
    • Indiana Court of Appeals of Indiana
    • June 11, 1965
    ...Insurance Company v Bachtenkircher, Receiver (1935), 209 Ind. 106, 198 N.E. 81, 104 A.L.R. 1135; Bryant et al. v. Owens et al. (1953), 232 Ind. 237, 111 N.E.2d 804; Ault v. Zehering (1871), 38 Ind. 429, It is quite apparent that cross-appellee had but one cause of action; and cross-appellee......
  • State v. Puckett, No. 49A02-8708-CV-311
    • United States
    • Indiana Court of Appeals of Indiana
    • December 14, 1988
    ...was duly presented and where it was palpably bad, it would be a perversion of justice to hold otherwise). See also Bryant v. Owens (1953) 232 Ind. 237, 111 N.E.2d 804 (where the question of merger of the causes of action in the first judgment was not presented on appeal of the second judgme......
  • Evansville Am. Legion Home Ass'n v. White, No. 20700
    • United States
    • Indiana Court of Appeals of Indiana
    • November 8, 1967
    ...merged in the former. Mutual Benefit Life Insurance Company v. Bachtenkircher, Receiver (1935), supra; Bryant et al v. Owens et al (1953), 232 Ind. 237, 111 N.E.2d 804; Ault v. Zehering (1871), 38 Ind. 429, In the Bryant case the court considered circumstances analogous to those herein and ......
  • Carey v. State, No. 2-1278A438
    • United States
    • Indiana Court of Appeals of Indiana
    • May 17, 1979
    ...appellant, since it is his duty to present a proper record reflecting the facts on which alleged error is based. Bryant v. Owens (1953), 232 Ind. 237, 111 N.E.2d 804, 806; Fort Wayne v. Bishop (1950), 228 Ind. 304, 92 N.E.2d 544. See also State v. Hancock Superior Court (1979), Ind., 383 N.......
  • Request a trial to view additional results
15 cases
  • White v. Evansville American Legion Home Association, No. 19999
    • United States
    • Indiana Court of Appeals of Indiana
    • June 11, 1965
    ...Insurance Company v Bachtenkircher, Receiver (1935), 209 Ind. 106, 198 N.E. 81, 104 A.L.R. 1135; Bryant et al. v. Owens et al. (1953), 232 Ind. 237, 111 N.E.2d 804; Ault v. Zehering (1871), 38 Ind. 429, It is quite apparent that cross-appellee had but one cause of action; and cross-appellee......
  • State v. Puckett, No. 49A02-8708-CV-311
    • United States
    • Indiana Court of Appeals of Indiana
    • December 14, 1988
    ...was duly presented and where it was palpably bad, it would be a perversion of justice to hold otherwise). See also Bryant v. Owens (1953) 232 Ind. 237, 111 N.E.2d 804 (where the question of merger of the causes of action in the first judgment was not presented on appeal of the second judgme......
  • Evansville Am. Legion Home Ass'n v. White, No. 20700
    • United States
    • Indiana Court of Appeals of Indiana
    • November 8, 1967
    ...merged in the former. Mutual Benefit Life Insurance Company v. Bachtenkircher, Receiver (1935), supra; Bryant et al v. Owens et al (1953), 232 Ind. 237, 111 N.E.2d 804; Ault v. Zehering (1871), 38 Ind. 429, In the Bryant case the court considered circumstances analogous to those herein and ......
  • Carey v. State, No. 2-1278A438
    • United States
    • Indiana Court of Appeals of Indiana
    • May 17, 1979
    ...appellant, since it is his duty to present a proper record reflecting the facts on which alleged error is based. Bryant v. Owens (1953), 232 Ind. 237, 111 N.E.2d 804, 806; Fort Wayne v. Bishop (1950), 228 Ind. 304, 92 N.E.2d 544. See also State v. Hancock Superior Court (1979), Ind., 383 N.......
  • Request a trial to view additional results

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