Chester v. Graves

• Decision Date: 27 May 1914
• Citation: 166 S.W. 998,159 Ky. 244
• Parties: CHESTER ET AL. v. GRAVES ET UX. (TWO CASES). [d1]
• Court: Kentucky Court of Appeals

166 S.W. 998

159 Ky. 244

CHESTER ET AL. v. GRAVES ET UX. (TWO CASES). ^[d1]

Court of Appeals of Kentucky.

May 27, 1914

Appeal from Circuit Court, Jefferson County, Common Pleas Branch Third Division.

Proceedings by John C. Graves and Mary C. Graves, his wife, for the adoption of Peach Ethel McGlothlin and Lida May McGlothlin infants. Judgments of adoption were rendered, but not entered of record, and John C. Graves and the infants petition for the entry of judgments nunc pro tunc, to which Maggie Chester and others, heirs of Mary C. Graves, deceased, were made parties. From judgments entering adoption judgments nunc pro tunc, the heirs appeal. Affirmed.

Benedict Elder and R. C. Elder, both of Louisville, for appellants.

Edwards Ogden & Peak and Nat. C. Cureton, all of Louisville, for appellees.

CLAY C.

These two appeals involve the same questions, and will be considered in one opinion. They grow out of certain proceedings in the Jefferson circuit court, common pleas branch, third division, whereby John G. Graves and Mary C Graves, his wife, sought to adopt two infant children, Peach Ethel McGlothlin and Lida May McGlothlin, and involve the propriety of that court's action in entering nunc pro tunc two judgments purporting to have been rendered by that court several years before.

On December 11, 1908, plaintiffs, John C. and Mary C. Graves, filed in the Jefferson circuit court, common pleas branch, third division, the following petition and exhibit:

"In re John C. & Mary C. Graves, on petition to adopt the child Lida May McGlothlin, a minor six (6) years of age. Now come John C. & Mary C. Graves and respectfully petition the court and show petitioners, being of full age and residents, citizens, and inhabitants of the state of Kentucky, desire to adopt a minor child six (6) years of age, by name Lida May McGlothlin, and in sex a girl, and which child is now the ward legally of the Kentucky Children's Home Society, a corporation under the laws of Kentucky, and said society has all rights of custody and control and guardianship over said child, and is legally authorized and empowered to agree upon and consummate this adoption, and the natural business and powers of said society, under the law, are arranging and perfecting the adoptions of children, such as exemplified in this case; that the written agreement and terms of the adoption of the said child between petitioners and said society are set forth in the paper exhibited herewith, and made a part hereof and marked 'Exhibit A.' In said written agreement said society fully and freely consents and agrees to the adoption of said child by petitioners. It is shown by petitioners that said child is destitute and helpless and without support or parental aid for the necessities or advantages of life, and that it is necessary that said child be adopted by petitioners. Said child is not the child by blood of petitioners. Petitioners show that they are of sufficient ability, financially and otherwise, to nurture, protect, and educate said child properly, and petitioners will do the same, and the adoption of said child is sought with such intention and understanding. It is sought by petitioners to adopt said child and establish and fix the name of said child as ______ and to make said child the full and complete heir at law of petitioners, and thereby give to said child all the characteristics, rights, benefits, and advantages, in law and in fact, as a child by birth and blood of petitioners. It is prayed that the court will pass an order allowing and fixing the adoption of said child by petitioners, and that the order create said child the complete heir at law and lawful child of petitioners in a manner as binding as if said child were by birth and blood the child of petitioners. And other further or necessary term or terms of such order are prayed for."

"No. Exhibit A.

Agreement of Adoption.

This agreement, made this 10th day of December, A. D., 1908, at Louisville in the State of Ky. between the Kentucky Children's Home Society, party of the first part, and John C. Graves and Mrs. Mary C. Graves, party of the second part, witnesseth: That, in consideration of the surrender--which is hereby made--by said first party to said second party, of a certain female child, named Lida May McGlothlin, the second party agrees to legally adopt said child and rear, nurture, and support said child tenderly and affectionately, and give it a Christian education.

And it is further agreed that said child shall not be given away to any third party, neither before nor after adoption, without the written consent and approbation of the party of the first part.

And it is finally agreed that if, at any time hereafter, said second party, or either of them, shall fail to legally adopt Lida May McGlothlin and to care for, support, nurture, or educate said child in the manner and time above agreed, all right of the second party to said child shall at once be at an end, and the first party may at once, at its option, retake her with all her clothing, wherever she may be, whether in this or any other state or nation.

Witness the hands of the said parties the day and year first above written.

Kentucky Children's Home Society,

By R. W. Bingham, President.

John C. Graves.

Mary C. Graves.

Approved by:

Geo. L. Sehon, State Superintendent.

Attest:

Ella Mayer, Secretary."

Among the papers of the case is the following order:

"Adoption Papers--Final Order.

Jefferson Circuit Court, Common Pleas Branch, Third Division. No. 53498.

In re John C. Graves and Mary C. Graves, on petition to adopt the child, Lida May McGlothlin, a minor six (6) years of age.

It appearing from the petition of John C. Graves and Mary C. Graves, residents, citizens, and inhabitants of the state of Kentucky, that they desire to adopt Lida May McGlothlin, a minor child not theirs by birth and six (6) years of age, the said child being under fourteen (14) years of age, and petitioner having produced the written consent and contract of the Kentucky Children's Home Society to such adoption, and the court being satisfied of the fitness and legality of such adoption, and being satisfied that petitioners are of sufficient ability financially and otherwise to care for, bring up, and educate said child properly, it is hereby ordered and declared that from this date said child, to all legal intents and purposes, be the child and complete heir-at-law of petitioners with all the relations, rights, and benefits of such heir.

The court on considering this matter privately examined Mary C. Graves, one of the petitioners, and wife of John C. Graves, and John C. Graves, the other petitioner, and such examination was separate and apart from her said husband, and she, said wife, agreed and consented of her own free will and accord, without fear or coercion, to said adoption, and she so stated on said private examination of the court and the court is satisfied of the same.

Let the above order be entered and of effect from this date, the 12th day of December, 1908.

[Signed] Matt O'Doherty, Judge."

The aforesaid judgment was never entered of record. Exactly the same proceedings were had in the case of Peach Ethel McGlothlin. After the two judgments were directed to be entered by the court, the clerk furnished Mrs. Graves certified copies of same, and her husband paid the costs. The children were then taken to Mrs. Graves' home, and were reared as their own children. In April, 1913, Mrs. Graves died. It was then for the first time discovered that the two judgments of adoption had never been entered of record. Thereupon supplemental petitions were filed by Mr. Graves and each of the two infant children, by their statutory guardian. In each case Maggie Chester and others, the legal heirs of Mrs. Graves, were made parties defendant. The supplemental petitions set out the institution of the two actions, the hearing by the court, the fact that judgments were rendered, and that the court in writing directed the judgments to be entered of record. They also set out the failure of the clerk in each instance to record the judgment. Accompanying the supplemental petition are affidavits of the attorney who brought the proceedings, the Honorable Matt O'Doherty, the then presiding judge, and of the clerk of the court, to the effect that the two judgments purporting to be rendered were, as a matter of fact, rendered, and by mistake or oversight of the clerk, were not entered of record. The petitions then asked that the two judgments be entered nunc pro tunc. The heirs of Mrs. Graves were notified of the hearing. They introduced no evidence, but relied entirely on...