Johnson v. Smith , 25938.
| Decision Date | 12 June 1931 |
| Docket Number | No. 25938.,25938. |
| Citation | 176 N.E. 705,203 Ind. 214 |
| Parties | JOHNSON et ux. v. SMITH et ux. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Porter Circuit Court; H. W. Worden, Special Judge.
Habeas corpus proceeding by Hamlin H. Smith and wife against August R. Johnson and wife. Judgment for plaintiffs, and defendants appeal.
Affirmed.
L. C. Holland, of Gary, and Joseph Conroy, of Hammond, for appellants.
Moses Leopold, of Rensselaer, for appellees.
Appellees, by their complaint filed in the court below on July 2, 1930, against appellants, sought, by a writ of habeas corpus, the possession and control of one Patricia Pearl Tripp, a minor child of the age of eighteen months.
The pleadings in this case consisted of a complaint, plea in abatement to which a demurrer for want of facts was sustained, a return to which exceptions thereto were sustained. Each of these rulings of the court, together with the overruling of appellants' motion for a new trial, are separately assigned as errors.
The complaint, in substance, alleged that the child was a resident of Jasper county; that both its parents departed this life in May, 1930; that the parents, prior to their death and while confined in the hospital at Rensselaer for medical treatment, gave the care and custody of the child to appellants, residents of Porter county, until they could leave the hospital; that appellees, on June 2, 1930, at a special term of the Jasper circuit court, were adjudged the adopted parents of the child; that neither of appellants were its guardian, but on demand, August R. Johnson refused to surrender the child to appellees and unlawfully restrained it of its liberty.
The gist of the plea in abatement was that of another action pending between these same parties, wherein it was made to appear that on May 23, 1930, in a proceeding by appellants to adopt the child here in question, judgment of adoption was entered by the Porter circuit court, and thereafter, on June 12, 1930, appellees petitioned the Porter circuit court to be permitted, as amicus curiæ, to present facts to the court for the purpose of having the court vacate and set aside its order of adoption, which petition was, by the court, ordered filed and appellees authorized to appear as amicus curiæ. Notice was ordered served upon appellants, and June 30, 1930, was fixed for the hearing. Appellants appeared pursuant to notice and filed a motion to strike out the amicus curiæ petition, assigning various reasons. This motion was overruled. Thereupon, the court, moved by the petition of the amicus curiæ, heard evidence and found that the child, Patricia Pearl Tripp, was not a resident of Porter county but was a resident of Jasper county at the time the adoption proceedings in the Porter circuit court were had; that the order of adoption should be vacated and set aside, and the petition for adoption by appellants denied. Judgment in accordance with the foregoing findings. From that order and judgment an appeal was prosecuted to the Appellate Court of Indiana and was there pending at the time these proceedings in habeas corpus were instituted.
[1][2][3] As we are at present advised, we are not at this time concerned with the action of the Porter circuit court in setting aside its order of adoption, although it must first have found that the best interests of the child justified the judgment of adoption. Section 915, Burns' Ann. St. 1926, Acts 1883, c. 55, p. 61.
A proceeding for the adoption of a child is statutory and ex parte. No adversary is contemplated other than the living parents who may interpose objections in a proper case. Such cases call upon the court to exercise its sound legal discretion for the best interests of the child. Leonard v. Honisfager, 43 Ind. App. 607, 88 N. E. 91. The only element common to both a proceeding to adopt and one for possession of a child, as here, is its welfare, and the prosecution of either one to judgment will not bar the other.
To the writ of habeas corpus issued upon appellees' complaint, appellants filed a return in three paragraphs. The first paragraph was withdrawn and exceptions were sustained to the other two. The second paragraph proceeded upon the theory that the act of the parents, prior to their deaths May 12th and 16th, in giving the possession, care, and custody of their only child, seventeen months old, to appellants, residents of Porter county, Ind., until called for by them, and in whose home it resided on May 23, 1930, was sufficient to vest the Porter circuit court with jurisdiction of the person and subject-matter of the proceedings whereby on that date it rendered judgment of adoption of the child by appellants; that thereafter, upon petition by appellees, the Porter circuit court vacated and set aside the judgment of adoption from which an appeal was taken to the Appellate Court, and upon a reversal of the court's last action appellants will be entitled to a reinstatement of their judgment of adoption.
The third paragraph, in substance, states that the child, then an infant seventeen months old, was the daughter of Earnest and Katherine Tripp, both of whom departed this life in Jasper county, Ind., on May 12th and 16th, respectively; that during their lifetime, on May 9, 1930, the child was, by its parents, placed in the home of these appellants in Porter county to be kept and cared for by them until they should call...
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