Heber v. Drake

• Decision Date: 23 April 1918
• Docket Number: 10,197
• Parties: HEBER ET AL. v. DRAKE ET AL
• Court: Indiana Appellate Court

118 N.E. 864

68 Ind.App. 448

HEBER ET AL. v. DRAKE ET AL

No. 10,197

Court of Appeals of Indiana

April 23, 1918

Rehearing denied June 20, 1918. Transfer denied November 19 1918.

From Parke Juvenile Court; Henry Daniels, Judge.

Proceedings by Andrew Drake and others against Andrew Heber and his wife to have their infant daughter declared a public charge. From a judgment for plaintiffs, the defendants appeal.

Affirmed.

White & Henderson, for appellant.

Earl M Dowd, J. M. Johns, S. F. Max Puett and H. H. Banta, for appellees.

OPINION

IBACH, C. J.

Pursuant to § 1644 Burns 1914, Acts 1907 p. 59, a case was brought by Andrew Drake in the juvenile court of Parke county on November 7, 1917, wherein it was charged that Barbara Heber, sixteen years of age, and a daughter of appellants, was a neglected and dependent child and should be made a public charge. A notice was issued by the clerk of such court to appellants to bring such child before the court and to do what should be ordered concerning her. On November 20, 1917, evidence was heard, after which there was a finding and judgment that it was for the best interest of such child to be made a ward of the state, and her custody was awarded to the board of children's guardians of said county.

Following the statutes governing appeals in such cases the judge of such court has certified to this court the following facts: Finding 1. The infant, Barbara Heber, who was sixteen years old on June 10, 1917, is the daughter of Andrew and Emma Heber, and on November 7, 1917, had her home with her parents. Nos. 2 and 3. The home of said Barbara Heber on November 7, 1917, was in Parke county, Indiana, and she was in the junior grade of high school. No. 4. The parents refused to allow her, the said Barbara, to attend school anywhere. No. 5. She was cursed and abused and ill treated by both parents. No. 6. She had not been provided with proper or suitable clothes by her parents, and was compelled by her parents to do work on the farm and other work about the house which was neither proper nor right that she should be required to perform. No. 7. The father Andrew Heber had at times made threats to the girl that he would kill her and at one time struck her with his fist and knocked her down and bruised her face and body. No. 8. At all times the girl was ill-treated and cursed and abused by both father and mother.

No question is presented with respect to the findings of the court; neither is the evidence before us. We also find in appellants' brief the following: "In no place in our brief have we complained of the sufficiency of the evidence and it was a matter of our own discretion whether or not we should do so."

Appellants' assignment of errors contains many alleged independent errors which could only be presented by incorporating them in the motion for a new trial and then by assigning the action of the court on such motion as error. But with this course of practice we are not concerned in this appeal for the reason that there is only one assignment of error contemplated by the statute, which presents both the sufficiency of the facts found and the sufficiency of the evidence to support the finding, and that is "that the decision of the (juvenile) court is contrary to law." § 1635 Burns 1914, Acts 1907 p. 221; Parker v. State (1917), 63 Ind.App. 671, 113 N.E. 763.

Appellants have in effect admitted that the evidence was sufficient to warrant the facts found, but contend that the court should have sustained the mother's affidavit for a change of venue from the judge, and that there was error in assuming jurisdiction over the subject-matter and over the person of the father, Andrew Heber.

Section 1646 (Acts 1907 p. 59) of the same act provides: "This act shall be liberally construed to the end that proper guardianship may be provided for such child, that the child may be educated and cared for, as far as practicable, in such manner as best subserves its moral, intellectual and physical welfare, and as far as practicable in proper cases that the parent or person having its care, custody or control may be compelled to perform their moral and legal duty in the interest of the child."

The purpose of the act with which we are now dealing could not have been more clearly defined, and we may add that the courts generally in construing similar acts have placed a construction thereon similar to that which our legislature has by definite enactment provided. They have said that the object of the act is not punishment, but reformation discipline, and education, and, to provide for the...