In re Zartman's Adoption

• Citation: 65 S.W.2d 951,334 Mo. 237
• Parties: In Re Adoption of Francis Zartman: Hiram L. Wubenhorst and Ruby C. Weubenhorst, Appellants, v. William T. Alford, Guardian ad litem
• Decision Date: 06 December 1933
• Court: United States State Supreme Court of Missouri

65 S.W.2d 951

334 Mo. 237

In Re Adoption of Francis Zartman: Hiram L. Wubenhorst and Ruby C. Weubenhorst, Appellants, v. William T. Alford, Guardian ad litem

Supreme Court of Missouri

December 6, 1933

Appeal from Jackson Circuit Court; Hon. E. E. Porterfield Judge.

Reversed and remanded (with directions).

John S. Cannon for appellants.

(1) The Juvenile Division is a special court, has no general court powers, and no power to vacate judgment on its own motion. Ferguson v. Ferguson, 56 Mo. 197; Ells v Railroad, 51 Mo. 203; Sharpe v. Sharpe, 134 Mo.App. 278; Harvey v. Gregg, 177 S.W. 593; State ex rel. Dew v. Trimble, 269 S.W. 622; Thompson v. Arnold, 230 S.W. 323; State ex rel Kaiser v. Miller, 289 S.W. 898; Rochford v. Bailey, 17 S.W.2d 944; 29 Cyc. 722. (2) Neither special courts nor general courts can amend or vacate their judgments unless legal grounds are shown. Scales v. Scales, 65 Mo.App. 294; State ex rel. Wendling v. Arnold, 193 S.W. 294; Thompson v. Wendling, 218 S.W. 672; L. R. A. 1917B, 419, 420. (3) Vacation of judgment without notice, hearing, etc., is a denial of due process of law. Laughlin v. Fairbanks, 8 Mo. 370; Morris v. Morris, 60 Mo.App. 88; Scales v. Scales, 65 Mo.App. 294; George v. Middough, 62 Mo. 551; Lowry v. Rainwater, 70 Mo. 157; Barber Asphalt Paving Co. v. Ridge, 169 Mo. 376, 68 S.W. 1043; Pulitzer Pub. Co. v. Allen, 134 Mo.App. 233; Hunt v. Searcy, 167 Mo. 180; State ex inf. Crow v. Shepherd, 177 Mo. 243; State ex rel. Shackelford v. McElhinney, 145 S.W. 1142; State ex rel. Demms v. Holtcamp, 151 S.W. 157; State v. Guerringer, 178 S.W. 67; State ex inf. Killam v. Colbert, 201 S.W. 52; St. Louis v. Mo. Pacific, 211 S.W. 671; State v. Broaddus, 289 S.W. 795; Dougherty v. Manhattan Rubber Mfg. Co., 29 S.W.2d 127; Furman v. Furman, 60 Am. St. Rep. 660, L. R. A. 1917B, 419; Mott on Due Process of Law, secs. 87-92, pp. 208-240; Sec. 10, Art. 2, Mo. Const.; Sec. 30, Art. 2, Mo. Const.; Amend. 14, U.S. Const.; The Magna Charta, 1215; The Bill of Rights, 1689; American Declaration of Rights, 1765; American Declaration of Rights, 1774; Declaration of Independence, 1776; Thomas Paine's "Natural Rights of Man," 1777. (4) This attempted vacation is not a vacation or an amendment, but is a new judgment without notice, cause, hearing, evidence or opportunity to be heard. 14 Standard Encyclopedia of Law and Procedure, p. 728; 33 C. J., pp. 1047, 1051; 10 A. L. R. p. 548. (5) Juvenile Courts' power to vacate in adoption cases is restricted to the adoption statute, to-wit, Section 14080, Revised Statutes 1929. Sec. 14080, R. S. 1929; Rochford v. Bailey, 17 S.W.2d 944; Ferguson v. Ferguson, 36 Mo. 197; State ex rel. Kaiser v. Miller, 289 S.W. 898; 29 Cyc. 722. (6) Conceding the erroneous premise that the Juvenile Court had power of its own motion without notice, hearing or opportunity to be heard, to set aside judgment or render a new judgment, the acts complained of herein were arbitrary and oppressive in fact, procedure and effect. Edwards v. Mo. Pacific, 82 Mo.App. 480; Scott v. Joffe, 125 Mo.App. 579; Ewart v. Peniston, 136 S.W. 426; Currey v. Trinity Zinc, Lead & Smelting Co., 139 S.W. 216.

R. B. Kirwan for respondent.

(1) Supreme Court will take judicial notice of its own records and proceedings. Custer v. Kroeger, 280 S.W. 1037; Runnels v. Lasswell, 272 S.W. 1033; State ex rel. v. Hamilton, 240 S.W. 448; State v. Matheson, 261 S.W. 335. (2) Juvenile Division of circuit court a court of common-law jurisdiction. In re McFarland, 12 S.W.2d 526. (3) Juvenile court being a court of common-law jurisdiction may set aside its judgment on own motion any time during term. Marsala v. Marsala, 288 Mo. 301; Smith v. Perkins, 124 Mo. 53; People's v. Bullock, 270 S.W. 120; Ewart v. Peniston, 233 Mo. 695; Scott v. Joffee, 125 Mo.App. 573; Withams v. Circuit Court, 5 Mo. 248; Scott v. Smith, 133 Mo. 622; State v. Lonon, 56 S.W.2d 380; Boegemann v. Bracy, 315 Mo. 437; Reid v. Moulton, 210 S.W. 34; Nelson v. Ghiselin, 17 Mo.App. 666; Hesse v. Secyf, 88 Mo.App. 72; Ekonomon v. Church, 280 S.W. 57.

Sturgis, C. Ferguson and Hyde, CC., concur.

OPINION

STURGIS

This is a contest over the adoption of Francis Zartman, a minor child, by the appellants, Hiram L Wubenhorst and his wife, Ruby C. Wubenhorst, in a proceeding had by such appellants in the Juvenile Division of the Circuit Court of Jackson County. That court first entered a decree of adoption of said minor child on July 10, 1930, at the May Term, 1930, of said court. Later on September 5, 1930, but during the same term of court, it made and entered its order or judgment setting aside the decree of adoption. It is from this order or new judgment that the adopting parents, appellants, have taken and perfected their appeal to this court.

The record discloses that on May 6, 1930, the appellants, husband and wife, petitioned the Circuit Court of Jackson County, under the provisions of Section 14073, Revised Statutes 1929, for permission to adopt Francis Zartman, a minor child, as their child. No question is made as to the sufficiency of the petition or the jurisdiction of the court. The natural parents of said minor child were both dead and the duly appointed guardian of the child, it being under twelve years of age, filed his consent to such adoption by the petitioners. Said cause was docketed under the title of In re Adoption of Francis Zartman: Hiram L. Wubenhorst and Ruby Co. Wubenhorst, Petitioners, and was duly assigned for trial in the Juvenile Division of the court. Before any hearing was had the court appointed William T. Alford, designated here as defendant, an attorney at law, guardian ad litem of said minor child. Said guardian ad litem qualified as such and in due time filed his answer, in which he stated that "he has carefully investigated the facts alleged in the petition herein and that he is satisfied from such investigation that the persons petitioning to adopt said child are of good character and have sufficient ability to properly care for, maintain and educate said child, and that the welfare of said child will be promoted by sustaining the petition for adoption, but in addition thereto he prays the court to require strict proof thereof."

Thereafter on July 10, 1930, in due course, at the May Term of court, the following decree was made and entered, to-wit:

"Now on this 10th day of July, 1930, the petition of Hiram L. Wubenhorst and Ruby C. Wubenhorst for the adoption of Francis Zartman coming on to be heard and the report of William T. Alford, guardian ad litem for said child in these proceedings, having been made herein, the said Francis Zartman, a minor, being present in person and by said guardian ad litem, and the evidence being heard, and the court being fully advised, finds:

"That said Francis Zartman is a minor under the age of twelve years and resides in Jackson County, Missouri.

"The court further finds that said petition for adoption and the parental consent to such adoption are in due form and that the report of said guardian ad litem is favorable to said adoption. The court is satisfied that the persons petitioning to adopt said child are of good character and of sufficient ability to properly care for, maintain and educate such child, and that the welfare of such child will be promoted by sustaining said petition for adoption; and that it is fit and proper that such adoption should be made.

"Wherefore, it is adjudged, ordered and decreed that from the date of this decree said child shall, to all legal intents and purposes, become and be the child of said Hiram L. Wubenhorst and Ruby C. Wubenhorst, and that the name of said child shall be changed to Richard Francis Wubenhorst.

"It is further adjudged, ordered and decreed that the natural parents of said child shall in no wise hereafter have any right or claim to or for the services, wages, control, custody or company of said child."

Thereafter at the same May Term of court on September 4, 1930, the guardian ad litem, William T. Alford, filed a motion therein to set aside the decree of adoption, reciting the granting of the decree of adoption on July 10, 1930, and that this motion is filed at the same term of court, and further stating:

"That it has been brought to the attention of the said William T. Alford that the mother to whom said child was adopted is unfit morally to have said child, and therefore prays the court to have the order granting said adoption to the above named petitioners set aside by the court, and that a hearing be had upon the matter in the Juvenile Division of the Circuit Court of Jackson County, Missouri, on Saturday, the 6th day of September, 1930, at nine o'clock A. M., or as soon thereafter as counsel can be heard.

"A copy of this motion is served upon the defendants herein."

In the caption of this motion Hiram L. Wubenhorst and Ruby C. Wubenhorst are designated as defendants.

Although said motion stated that same would be presented for hearing at the convening of court on Saturday, September 6, 1930, the court of its own motion on September 5, 1930, at nine o'clock a. m., without any notice to the adopting parents and without giving them any opportunity to be present or be heard in the matter, entered of record the following judgment or order:

"Now on this 5th day of September, 1930, Re the adoption of Francis Zartman, No. A-6650, by Hiram L. Wubenhorst and Ruby C. Wubenhorst, his wife, it appearing to the court that Mrs Ruby C. Wubenhorst drinks to excess and remains absent for many hours away from said baby, Francis Zartman (Wubenhorst), the court of its own motion sets aside the decree of adoption heretofore granted, and orders that the said Francis Zartman (Wubenhorst) be detained in the Evans Home, where it now is, and to...