In re Perry

• Decision Date: 02 June 1925
• Docket Number: No. 12232.,12232.
• Citation: 148 N.E. 163,83 Ind.App. 456
• Parties: In re PERRY.
• Court: Indiana Appellate Court

83 Ind.App. 456

148 N.E. 163

In re PERRY.

No. 12232.^*

Appellate Court of Indiana.

June 2, 1925.

Appeal from Circuit Court, Boone County; Frank E. Hutchinson, Judge.

In the matter of the adoption of Mary Elizabeth Perry by May H. Suter. From a judgment vacating and setting aside an order of adoption and dismissing her petition, petitioner appeals. Reversed, with directions.Bell, Kirkpatrick, McClure & Elliott, of Kokomo, and Roy W. Adney, of Lebanon, for appellant.

Frank S. Roby and R. P. Bundy, both of Zionsville, for appellee.

McMAHAN, J.

On March 1, 1924, May H. Suter, hereafter designated as petitioner, filed her petition in the Boone circuit court for the adoption of Mary Elizabeth Perry.

The petition stated that the petitioner was a school teacher, residing in Howard county, Ind.; that Mary Elizabeth Perry was a female child, eight years of age, the child of Ruth E. Perry and Samuel P. Weller, and born in lawful wedlock; that her father died in 1916; that his widow, the mother of said child, later married Earl C. Perry; that thereafter said Mary E. Perry was adopted by said Ruth E. Perry and her husband, Earl C. Perry, and her name changed to Mary Elizabeth Perry by the county court of Cook county, Ill.; that Ruth E. Perry, the mother, died in 1922; that thereafter William E. Myers of Zionsville, Ind., was appointed guardian of said child; that said child was in the care and custody of said William E. Myers as guardian at his home in Zionsville; that the adopted father of said child lived in Grant county, Ind., and had given his written consent that the said child be adopted by the petitioner. The verified consent of Earl C. Perry to said adoption by the petitioner was also filed with the clerk.

The court on said March 1, 1924, entered an order of adoption in accordance with the petition, and ordered that the petitioner from that time have the care and custody of said child. Two weeks later, and within the term at which the order of adoption was made and entered, William E. Myers filed a verified application asking leave to appear as amicus curiæ, for the purpose of presenting to the court certain facts about which he believed the court should be more fully informed, and which he believed would lead the court to vacate the order of adoption. In his application Mr. Myers stated he was an uncle of said child and its duly appointed guardian acting under appointment of the probate court of Marion county; that she had been an inmate in his home for three years, during which time he had cared for and schooled her at his own expense; that he was able financially and morally fit to have her care and custody; that there was an agreement between him and the relatives of said child that, if at any time there should by any action to change her residence or control, he should be notified, and that no such change should be had without his consent; that he had no notice or knowledge of said adoption proceeding until said petitioner appeared at his home with the order of adoption and demanded the immediate possession of such child; that the petitioner had no permanent home other than a boarding house; that she did not intend to keep said child permanently and make a home for her, but that it had been and was her intention to place such child in a home in Chicago, Ill., among strangers to the court, and about whom the court knew nothing; that the adoptive father, Earl C. Perry, was a bona fide resident of Grant county, Ind.; that the consent of said adoption was procured from said Earl C. Perry by purchase and payment of money, and that, had the facts, including the want of jurisdiction of said minor, been called to the attention of the court, and the facts concerning the best interest of said child been given the court, said adoption would not have been granted.

On order of court notice was given the petitioner, May H. Suter, of the filing of such application by Mr. Myers, and that the court would hear such application April 7, 1924; that being the first day of the next regular term of the court. On April 7 May H. Suter appeared and filed a motion to strike the application of Mr. Myers from file. On April 19 this motion was overruled, and Mr. Myers was then for the first time given leave to appear as amicus curiæ, and, the petitioner refusing to introduce any further evidence, the court, after considering the facts alleged in the application of Mr. Myers, and on a reconsideration of the evidence theretofore introduced, found the facts set forth in the application of Mr. Myers to be true, and the order of adoption entered at the preceding term of court was vacated, the custody of the child restored to the guardian, and the petition for adoption dismissed.

From the action of the court in vacating and setting aside the order of adoption and dismissing her petition May H. Suter appeals, and insists: (1) That the court erred in overruling her motion to strike out the application of Mr. Myers to be allowed to appear as amicus curiæ and in allowing him to appear as such; and (2) that the court erred in setting aside the order of adoption, and in dismissing her petition.

[1][2] In discussing the questions involved it will be well to keep in mind that an amicus curiæ is one who, as a stander-by, when a judge is in doubt or mistaken in a matter of law, may inform the court. He is heard only by leave, and for the assistance of the court, upon a case then before it. He is not a party to the suit, and has no control over it. Birmingham Loan & Auction Co. v. First National Bank, 100 Ala. 249, 13 So. 945, 46 Am. St. Rep. 45. Courts undoubtedly have the right to allow an attorney, or other person, to appear as a friend of the court in a case, to act as an adviser of the court, and to make suggestions as to matters appearing upon the record, or in matters of practice. An amicus curiæ has no rights in the matter. He can file no pleadings or motions of any kind. He can reserve no exception to any ruling of the court, and of course cannot prosecute an appeal. It has been held in this state that an amicus curiæ may, on leave, file briefs, argue the case, and introduce evidence. Parker v. State, 133 Ind. 178, 32 N. E. 836, 33 N. E. 119, 18 L. R. A. 567;Irwin v. Armuth, 129 Ind. 340, 28 N. E. 702. See, also, Hamlin v. Meeting House, 103 Me. 343, 69 A. 315. But, since the amicus curiæ can do nothing other than advise the court, no party to the action has any cause to complain if the court grants a stranger the privilege of being heard, since no action of such party can affect the legal rights of a party to the action. This being true, there was no reversible error in the action of the court in overruling the motion to strike out the petition of Mr. Myers for leave to appear as amicus curiæ, or in permitting him to be heard.

[3][4][5] In support of the second contention appellant, conceding that courts have control over their judgments and decrees during the term at which they are rendered, insists that the court had no power or control over order of adoption at the term following the one at which it was made, for the reason that the adoption proceeding was no longer before the court.

Mr. Myers was not a party to the adoption proceeding. He could not become a party thereto or be given any right to appear and object to the adoption. He was a stranger to the record. Leonard v. Honisfager, 43 Ind. App. 607, 88 N. E. 91. The filing of the application after judgment, by a stranger to the record, asking leave to be heard as a mere friend of the court, did not keep the cause in court so as to give the court any power over the judgment at a subsequent term. Proceedings for adoption are judicial in character, and an order of adoption is no more sacred than is the decree in any other proceeding in court. Such an order and the power of the court over it are governed by the same rules of law as are all other judgments and decrees.

[6] The court without doubt had the power and authority to vacate and set aside the decree of adoption at the term when it was made, and, if after the filing of the application by Mr. Myers for leave to appear as a friend of the court, the trial judge thought there was a probability that he had erred in the matter, he should have acted before the end of the term and have vacated and set aside the order of adoption and continued the matter, if need be, until the next term of court. It would be a dangerous and far-reaching precedent if we were to hold that the mere filing of an application after judgment by a stranger to an action, asking leave to appear as a friend of the court, was sufficient to give the court authority to vacate the judgment at a subsequent term. For a discussion of the power of the court to change a final judgment see McClellan v. Binkley, 78 Ind. 502;Cario, etc., R. Co. v. Holbrook, 72 Ill. 419;Simmons v. Dowd, 77 N. C. 155;Cook v. Moore, 100 N. C. 294, 6 S. E. 795, 6 Am. St. Rep. 587;Ward v. Lee, 1 Bibb (4 Ky.) 18; Ætna Life Ins. Co. v. McCormick, 20 Wis. 279;Bank of United States v. Moss, 47 U. S. (6 How.) 31, 12 L. Ed. 331.

It was one of the earliest doctrines of the common law that the record of a judgment might be changed at any time during the term at which it was rendered. The Boone circuit court had that power. It had the power to change, amend, or vacate the order of adoption at any time during the term in which it was made. Its power, however, terminated with the close of the term, unless the proceeding for adoption was kept alive by reason of Mr. Myers having filed a petition for leave to appear as a friend of the court.

[7] It has been held that a motion for leave to file a motion for a new trial does not keep a cause in court after the close of the term at which the judgment was rendered. Odell v. Sargent, 3 Kan. 80. And we hold the application of Mr. Myers for leave to appear as amicus curiæ did not give the court power to vacate the order of adoption after the close of...