Fienup v. Stamer

• Decision Date: 03 June 1930
• Docket Number: No. 21008.,21008.
• Citation: 28 S.W.2d 437
• Parties: FIENUP et al. v. STAMER et al.
• Court: Missouri Court of Appeals

28 S.W.2d 437

FIENUP et al. v. STAMER et al.

No. 21008.

St. Louis Court of Appeals. Missouri.

June 3, 1930.

Appeal from Circuit Court, Warren County; W. C. Hughes, Judge.

"Not to be officially published."

Separate applications by Gustav Fienup and Katie Fienup to be appointed curator of the estate of Lester Seger, a minor, in which proceedings George Stamer and others, as remonstrators, filed a petition alleging the incompetency of both applicants. From a judgment in favor of remonstrators, the applicants appeal.

Reversed in part and remanded.

Ellroy V. Selleck, of St. Louis, for appellants.

Alvin H. Juergensmeyer, of Warrenton, for respondents.

HAID, P. J.

The circuit court denied the applications of each of the appellants to be appointed curator of the estate of Lester Seger, a minor, who is the son of Katie Fienup and the adopted son of Gustav Fienup. Hence this appeal.

The matter originated in the probate court of Warren county. On November 23, 1928, Katie Fienup, the mother of the minor, filed a notice for appointment as curator of her minor child, together with an application to the court to designate amount of bond showing the minor entitled to the sum of $2,441.90 as his share of the sale of real estate which had belonged to his father.

The respondents on December 11, 1928, filed a petition alleging the incompetency of the mother and praying for the appointment of a suitable person as curator.

Thereupon the probate court on the same day issued its notice to Katie Fienup of the allegation of incompetency and directing her to show cause on or before December 22, 1928, why a curator should not be appointed. This was served upon her on December 12, 1928.

On December 22, 1928, Katie Fienup tendered a bond as curator in the sum of $5,000 with Southern Surety Company, as surety, together with her application for its approval.

On the same day, December 22, 1928, Gustav Fienup filed his application for appointment as curator together with a bond for $5,000 with the Southern Surety Company as surety.

On January 7, 1929, pursuant to the application of Katie Fienup, the matter of the appointment of a curator was certified to the circuit court.

On April 8, 1929, the respondents filed in the circuit court their petition alleging the incompetency of both Katie and Gustav Fienup and praying for the appointment of a suitable person as curator.

A trial was had before a jury, and on April 17, 1929, the jury returned a verdict that Katie Fienup was not a competent and proper person to be curator, and thereupon the court entered its judgment reciting that it was agreed in open court that the application of Gustav Fienup should be submitted on the same evidence presented to the jury upon the application of Katie Fienup, and then found that Gustav Fienup was not a competent and proper person to be appointed curator, and, accordingly, denied both applications and appointed George Coleman Dyer as curator.

Appellants have assigned a number of errors, but the burden of their argument relates to the court's action with reference to the application of Gustav Fienup to be appointed as curator. Our examination of the record convinces us that the court was justified in accepting the verdict of the jury that Katie Fienup was not competent and not a proper person to appoint.

The bill of exceptions shows conclusively that the trial before the jury was distinctly limited to the competency of Katie Fienup, and we are unable to find, and counsel for respondents has not pointed out to us any agreement, such as is referred to in the judgment, that the competency of Gustav Fienup was in issue upon that trial. In fact, the court itself announced at the beginning of the trial, "We are hearing now only as to Katie Fienup, as to whether she is a competent party." And again when attorney for respondents was about to read the petition of the respondents for the appointment of a curator, the court said, "Omit that part of it in regard to Gustav. Just the part in regard to Katie, is all that is in issue," and "omit that clause in regard to Gustav Fienup, it has no bearing here." The record discloses, however, that the attorney for the respondents and the court seem to have entertained the view that Gustav Fienup was in the same situation as any other person who was not a natural parent, and therefore he was not entitled to have the statutory ten days' notice, nor was he entitled to have a trial by jury upon the question of his being a competent and proper person to act as curator. If Gustav Fienup was not vested with the right of a parent, then undoubtedly the court was correct in its conclusion. This necessitates an examination of our statutes.

Chapter 11, article 1, of the Revised Statutes of Missouri, 1919, provides the procedure for adoption before the juvenile division of the circuit court of the county in which the person sought to be adopted resides.

Section 1100, which is contained in the chapter and article referred to, provides as follows:

"Hearing — Decree.—If the court, after due hearing, is satisfied that the person or persons petitioning to adopt such child is of good character, and of sufficient ability to properly care for, maintain and educate said child, and that the welfare of said child would be promoted by sustaining the petition for adoption, and that it is fit and proper that such adoption should be made, a decree shall be made setting forth the facts and ordering that from the date of the decree the child shall, to all legal intents and purposes be the child of the petitioner or petitioners, and the court may decree that the name of the child be changed, according to the prayer of the petition."

Adoption was unknown to the common law, Lamb v. Feehan (Mo. Sup.) 276 S. W. 71,...