Egoff v. Bd. of Children's Guardians of Madison Cnty.

• Decision Date: 01 April 1908
• Docket Number: No. 20,986.,20,986.
• Citation: 170 Ind. 238,84 N.E. 151
• Parties: EGOFF et al. v. BOARD OF CHILDREN'S GUARDIANS OF MADISON COUNTY et al.
• Court: Indiana Supreme Court

170 Ind. 238

84 N.E. 151

EGOFF et al.

v.BOARD OF CHILDREN'S GUARDIANS OF MADISON COUNTY et al.

No. 20,986.

Supreme Court of Indiana.

April 1, 1908.

Appeal from Circuit Court, Madison County; J. F. McClure, Judge.

Action by Jack Egoff and another against the board of children's guardians of Madison county and others. From a judgment for defendants, plaintiffs appeal. Affirmed.Gregory & Lotz, for appellants. Walker & Foster, for appellees.

JORDAN, J.

This action was instituted by Jack and Nora Egoff, appellants herein, to review and set aside a certain judgment rendered by the Madison circuit court in a proceeding wherein the board of children's guardians of Madison county, Ind., was plaintiff and the appellants were defendants. By the judgment rendered in said action the custody of a female child known as “Myrtle Egoff,” then about the age of five years, was given or awarded to said board. The complaint is in three paragraphs, to each of which a demurrer alleging insufficiency of facts was sustained. Thereupon appellants refused to further plead, but elected to abide by their complaint. The errors assigned relate to the rulings of the court upon the demurrer.

The first paragraph charges that on November 9, 1905, the board of children's guardians of Madison county, Ind., commenced in the Madison circuit court a suit against these plaintiffs (appellants herein). The complaint in said action was verified by the oath of Sarah E. Campbell, the secretary of the board, and, omitting the formal parts thereof, is as follows: “Said plaintiff complains of said defendants, and says that said defendants, who are residents of said county and state, have possession of a female child of about five years of age known as ‘Myrtle Egoff’; that said defendants are the reputed father and mother of said child. Said plaintiff says that said defendants do not furnish sufficient food and clothing for said child to keep the same in a degree of comfort necessary for its health and proper growth and development; that said Jack Egoff is vulgar and profane in his language before said child and in his family; that he compels said child to remain frequently with him in bed a large part of the day, and treats her with a degree of familiarity that is revolting and debasing to the child; that he is drunken in his habits and degenerate in his character and conduct in his family, and that it would be for the best interests of said child for the same to be taken charge of by this plaintiff and removed from the care and custody of both of said defendants; that the defendant Nora Egoff is not capable of sustaining and supporting said child separate and apart from said Jack Egoff, and is not able to protect said child from the evil influences of her said husband; that this board has been informed and has reason to believe that said child does not belong to said defendants, and is not their child and offspring.” (Here follow averments to show that the child is about to be removed beyond the jurisdiction of the court, etc.) The prayer of the complaint is “that the court inquire into the facts, and that said child be given to the care, custody, and possession of the board until the further order of this court and to the exclusion of both of said defendants, and that a warrant issue at once for the possession of said child, and that the court make such order as may seem best under the circumstances.” It is alleged that these plaintiffs appeared in court, in person and by their attorney, and demurred to this complaint for insufficiency of facts, that the demurrer was overruled, to which they excepted, and thereupon filed an answer in general denial. It is further shown that the cause upon the issues joined was submitted to the court for trial, and the court, having heard and seen the evidence, found in favor of the board of children's guardians; that the material allegations of the complaint were true; that the defendants had a female child of the age of about five years on the - day of September, 1905, known as “Myrtle Egoff”; that said child is not the offspring of the defendants, or either of them, but was procured by them when but a few days old, and has been held in their possession ever since. The court further found that said defendants, appellants herein, were not suitable persons to have the care, support, and possession of said child; that neither of them had sufficient food and clothing to keep the child in a degree of comfort necessary for its health, proper growth, and development; that the defendant Jack Egoff was vulgar and profane in his language before the child and in his family; and that he is drunken in his habits, and degenerate in his character and conduct in his family, and that he has exercised a degree of familiarity with said child revolting and debasing to it, and that it would be for its best interest that it be taken charge of by the plaintiff said board, and held in its care and custody until the further order of the court. Upon this finding it appears that the court rendered a judgment and decree to the effect that the plaintiff said board have the entire custody and possession of said child until the further order of the court, and that the defendants, and each of them, be relieved of any claim or right to the possession of said child until the further order of the court. It was further adjudged that plaintiff the board of children's guardians take, hold, and have possession of said child as under the statute made and provided authorizing the commitment of said child to said board, and that the child be placed by the board in the orphans' home of said county and state until the further order of the court. It is alleged that the judgment in said action does not show that there was any service on said child, and the court for that reason acquired no jurisdiction over the person of the child sufficient to warrant its adoption by said board, or through said board to others, as provided in said judgment, etc. It is further charged that there were manifest errors committed in said proceedings as follows: First, that the court erred in overruling plaintiffs' demurrer to the complaint; second, that the court had no jurisdiction over the subject-matter of the action; third, that the court had no jurisdiction and did not acquire jurisdiction over said child. Wherefore the plaintiffs pray that the judgment be in all things reversed and set aside.

The second paragraph makes similar charges as are made in the first, and sets out the same complaint, and after disclosing the appearance of plaintiffs as defendants to said action in person and by counsel, and the submission of the cause to the court for finding and judgment in like manner as is averred in the first paragraph, then charges: That the judgment or decree was taken, had, and entered by and through a mistake and inadvertence on the part of these plaintiffs, and by excusable neglect on their part, and by surprise, as hereinafter alleged, that is to say, that when the cause of action was called for trial the board introduced witnesses who testified in support of the various allegations in the complaint, and the court permitted the board to prove by certain witnesses, that they had heard and had been told and informed that said child, Myrtle Egoff, was not the offspring of Jack and Nora Egoff, then and there husband and wife. That on said trial the board was permitted by the court to introduce certain witnesses who testified that the child in question was affected with a certain disease. That the court then and there trying said cause indicated and announced that in its judgment the child should be...