Johnson v. Smith

Decision Date12 June 1931
Docket Number25,938
Citation176 N.E. 705,203 Ind. 214
PartiesJohnson et al. v. Smith et al
CourtIndiana Supreme Court

Rehearing denied January 29, 1932.

1. ADOPTION---Ex Parte Proceeding---Parents only Adversary Parties.---A proceeding to adopt a child is statutory and ex parte, no adversary except living parents being contemplated p. 217.

2. ADOPTION---Court's Discretion---For Best Interests of Child.---A proceeding for the adoption of a child calls on the court to exercise its sound legal discretion for the best interests of the child (915 Burns 1926). p. 217.

3. HABEAS CORPUS---For Possession of Child---Previous Adoption of Child not a Bar.---Since the only common element of a proceeding to adopt a child and a habeas corpus proceeding for the possession of such child is its welfare, the prosecution of either one to judgment will not bar the other p. 217.

4. HABEAS CORPUS---For Possession of Child---Child in Custody of Court---Power of Court over it Unlimited---Does not Depend on Sufficiency of Return.---When a child is brought into court in obedience to a writ of habeas corpus, it is in the custody of the court, the power of the court over it is unlimited and does not depend on the technical sufficiency of the return to the writ made by the defendant. p. 219.

5. HABEAS CORPUS---For Custody of Child---Paramount Question---Welfare and Best Interests of Child.---In all controversies affecting the custody of a child, whether between its parents, the parents and third persons, or between third persons, the paramount question is the welfare and best interests of the child. p. 219.

6. HABEAS CORPUS---For Custody of Child---Effect of Sustaining Exceptions to Return to Writ---Does not Preclude full Hearing as to Advantages Defendants may Give.---A ruling of the court sustaining exceptions to the defendants' return to the writ for the custody of a child does not preclude a full hearing as to defendants' standing as citizens, their ability to bestow care, attention and home comforts on the child, their proximity to schools, and any other fact tending to show advantages which the child would receive if remanded to their custody. p. 220.

7. HABEAS CORPUS---For Custody of Child---Matters Concerning Plaintiffs to be Investigated.---The plaintiffs' general character, home life and surroundings, and their ability to furnish advantages consistent with the child's best interest are also subject to inquiry in a habeas corpus proceeding for the custody of a child, in order that the court may act intelligently in determining the issue---the welfare of the child. p. 220.

8. HABEAS CORPUS---For Custody of Child---Court not Limited to Showing Made by Parties---May Make further Investigation.---In a habeas corpus proceeding for the custody of a child, the trial court is not limited in its investigation to the showing the parties may choose to make, but may make such further investigation as the necessities of the case may warrant. p. 220.

9. APPEALS---Review of Proceedings in Trial Court---Presumption of Freedom from Error.---The courts of appeal review the record of the proceedings in the trial court with the presumption in mind that it is free from harmful error. p. 220.

10. HABEAS CORPUS---For Custody of Child---Review of Proceeding by Supreme Court---Must be Assumed that Court Exercised Sound Legal Discretion as to Welfare of Child.---In reviewing a habeas corpus proceeding between third parties for the custody of a child, the Supreme Court must assume that the trial court exercised its sound legal discretion as to what was best for the child in giving the custody thereof to the prevailing party. p. 220.

From Porter Circuit Court; H. W. Worden, Special Judge.

Habeas corpus proceeding for the custody of a child by Hamlin H. Smith and wife against August R. Johnson and wife. From an order awarding the custody to the plaintiffs, the defendants appealed.


L. C. Holland, Joseph H. Conroy and John A. Dunlap, for appellants.

Moses Leopold and John Crumpacker, for appellees.


Myers, J.

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 18 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, is separately assigned as error.

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 was 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 amici curiae, 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 amici curiae. 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 amici curiae petition, assigning various reasons. This motion was overruled. Thereupon, the court, moved by the petition of the amici curiae, 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.

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. § 915 Burns 1926, Acts 1883 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 (1909), 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...

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