Bryant v. Owens

• Decision Date: 28 April 1953
• Docket Number: No. 28906,28906
• Citation: 111 N.E.2d 804,232 Ind. 237
• Parties: BRYANT et al. v. OWENS et al.
• Court: Indiana Supreme Court

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.

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 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 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 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.

It is the duty of appellant to bring before us a proper record, 'making the error he assigns apparent on the face thereof'. Siberry v. State, 1895, 149 Ind. 684, 688, 39 N.E. 936, 47 N.E. 458. We infer that the record now before us omits nothing in favor of the appellants. We can only look to the record before us, and it presents a case where a judgment was duly entered on a petition and cross-petition, and without any effort being made to appeal from, vacate or annul such judgment, the same court later after the term of the entry of the first judgment, had another hearing on the same petition and entered another judgment, from which an appeal is now prosecuted.

The question of merger of the causes of action in the first judgment is not presented by counsel, but 'Where resort to the record is necessary, the case will be determined by the record, and in such a case the court will not regard itself as bound down to the conceptions of counsel on either side as to the nature of the controlling facts. Big Creek Stone Co. v. Seward [1896], 144 Ind. 205, 42 N.E. 464, 43 N.E. 5; Scott v. City [of Laporte, 1904], 162 Ind. 34, 68 N.E. 278, 69 N.E. 675; State ex rel. v. Board [etc., 1906], 167 Ind. 276, 78 N.E. 1016.' Cleveland, etc., R. Co. v. Moore, 1907, 170 Ind. 328, 364, 82 N.E. 52, 84 N.E. 540. See also White v. White, 1935, 208 Ind. 314, 317, 194 N.E. 355, 196 N.E. 95; Keeshin Motor Express Co. v. Glassman, 1942, 219 Ind. 538, 557, 38 N.E.2d 847.

Under Chapter 146 of the 1941 Acts, § 3-115 to § 3-125, Burns' 1946 Replacement the petition is filed with the clerk of a court having probate jurisdiction in probate matters. Warrick County does not have a separate probate court, so the petition is to be filed with the Clerk of the Warrick Circuit Court. This court has 'jurisdiction of all other causes, matters and proceedings where exclusive jurisdiction thereof is not conferred by law upon some other court, board or officer.' Section 4-303, Burns' 1946 Replacement. Section 9-3103, Burns' 1942 Replacement (Supp.), does not give jurisdiction to the juvenile court in matters of adoption. See Attkisson v. Usrey, 1946, 224 Ind. 155, 65 N.E.2d 489. The fact that the petition of appellees was erroneously docketed as a juvenile cause did not make it such, and it was a harmless error which did not affect the jurisdiction of the trial court. Langley v. Mayhew, 1886, 107 Ind. 198, 6 N.E. 317, 8 N.E. 157.

There is nothing in the record showing appellants made any objection to the first hearing at an adjourned term, and any irregularities are therefore waived. Louisville, N. A. & C. Ry. Co. v. Power, 1889, 119 Ind. 269, 21 N.E. 751. 'The record not showing the contrary, the presumption is that the adjourned term was lawfully held.' Wood v. Franklin, 1884, 97 Ind. 117, 121. Where the court does hold an adjourned term, 'It is to be deemed a part of the regular term; and every step may be taken at such adjourned term, that might have been taken at...