Cotten v. Hamblin, 5-2478

• Decision Date: 06 November 1961
• Docket Number: No. 5-2478,5-2478
• Citation: Cotten v. Hamblin, 350 S.W.2d 612, 234 Ark. 109 (Ark. 1961)
• Parties: , 92 A.L.R.2d 811 J. C. COTTEN et ux., Appellants, v. Lyle HAMBLIN et ux., Appellees.
• Court: Arkansas Supreme Court

Page 612

350 S.W.2d 612

234 Ark. 109, 92 A.L.R.2d 811

J. C. COTTEN et ux., Appellants, v. Lyle HAMBLIN et ux., Appellees.

No. 5-2478.

Supreme Court of Arkansas.

Nov. 6, 1961.

J. B. Milham, Benton, for appellants.

John L. Hughes and Ben M. McCray, Benton, for appellees.

McFADDIN, Justice.

This appeal stems from appellants' attempt to set aside an order of adoption, and the only question here presented is whether there was a defect of parties. The Probate Court held that there was a defect, refused to hear the evidence, and dismissed the petition. From that ruling there is this appeal.

The appellants, Mr. and Mrs. J. C. Cotten, are the paternal grandparents of two little boys, Roy, aged 14, and Edward, aged 12. Iu October 1959, the Saline Probate Court made an order of final adoption (§ 56-108 et seq. Ark.Stats.) whereby the appellees, Mr. and Mrs. Hamblin, adopted the two little boys. In October 1960, Mr. and Mrs. Cotten filed a suit in the Saline Chancery Court to set aside the order of adoption. That case came before us in Cotten v. Hamblin, Ark., 342 S.W.2d 478, 480, wherein we held that the Chancery Court was without jurisdiction; and our opinion concluded: 'We accordingly affirm the decree without prejudice to the appellant's right to apply to the probate court for such relief as he may be entitled to--a point upon which we express no opinion.'

On February 21, 1961, Mr. and Mrs. Cotten filed the present petition in the Saline Probate Court, seeking to set aside the order of adoption, and they alleged: (1) That the petitioners were the paternal grandparents of the two little boys; that the petitioners, at all times, lived and resided in Garland County; that the little boys were living and residing with the petitioners in 1959; that the boys went to school, and the Hamblins took the children from school and proceeded with the adoption without notice to the petitioners. (2) That at the time of the adoption the boys were residents of Garland County and could not be legally adopted in a proceeding in the Saline Probate Court. (3) '* * * That the defendants are unable to get along with said minor children and have beat and abused said children without just cause, and especially beat and whipped Roy Jean with a large stick of wood and caused said children to leave their home in night-time and tramp through the woods to their grandparents, plaintiffs herein, that defendants and the children were strangers to each other at the time of adoption and said minor children have become somewhat hostile to said adopted parents.'

On motion of the Hamblins, the Probate Court, without hearing any evidence, dismissed the petition by an order which recited:

'That petitioners, who are the paternal grandparents of the adopted children, are not the proper parties to maintain an action to annul the adoption decree, the natural parents of said children having consented to said adoption ¹ and not having joined petitioners in their petition to annul said adoption decree.'

As aforesaid, the only question here presented is whether the petitioners are proper parties to maintain this action to annul the order of adoption. In Gillen v. Edge, 214 Ark. 776, 217 S.W.2d 926, the natural mother of a little girl filed a petition to annul the order of adoption. The Probate Court held that only the Welfare Department could maintain such a petition. In reversing the Probate Court's ruling, we said:

'Both the statute in force in 1943, Pope's Digest, § 263, and the present law, Ark.Stats.1947, § 56-110, provide that a ...