Johnson v. Smith

• Decision Date: 11 March 1932
• Docket Number: No. 14213.,14213.
• Parties: JOHNSON et al. v. SMITH et al.
• Court: Indiana Appellate Court

94 Ind.App. 619

180 N.E. 188

JOHNSON et al.

v.SMITH et al.^*

No. 14213.

Appellate Court of Indiana, in Banc.

March 11, 1932.

Appeal from Porter Circuit Court; Grant Crumpacker, Judge.

Proceedings instituted by Hamlin H. Smith and another, as amici curiæ, against August R. Johnson and another. From a judgment setting aside and vacating an order of adoption of Patricia Pearl Tripp, a minor child, August R. Johnson and another appeal.

Affirmed.

See, also, 176 N. E. 705.

Jos. H. Conroy, of Hammond, Louis C. Holland, of Gary, and John A. Dunlap, of Hammond, for appellants.

Moses Leopold, of Rensselaer, for appellees.

NEAL, J.

This is an appeal from a judgment setting aside and vacating an order of adoption of Patricia Pearl Tripp, a minor child, by August R. Johnson and Blanche M. Johnson, his wife (appellants herein).

The record discloses the following facts: That Patricia Pearl Tripp was the daughter and only child of Ernest Tripp and Sarah Kathryne Tripp, residents of Jasper county; that the father and mother of said child became ill and were taken to the Jasper County Hospital for treatment, where they died on May 12, 1930, and May 16, 1930, respectively; that, after the death of the father and prior to the death of the mother, appellants, with the permission of the child's mother, took Patricia Pearl Tripp to their home in Porter county to care for her; that on May 16, 1930, Hamlin H. Smith and Edna P. Smith (designated as amici curiæ herein), parents of the mother of said child, filed their verified petition for the adoption of said child in the Jasper circuit court, and on June 2, 1930, the Jasper circuit court found that Patricia Pearl Tripp was a resident of Jasper county and entered an order of adoption and that her name be changed to Patricia Pearl Smith.

The record further shows that appellants, residents of Porter county, on May 23, 1930, filed in the Porter circuit court their verified petition praying for an order of adoption of Patricia Pearl Tripp; that on said day the Porter circuit court entered its order of adoption of said child, and that her name be changed to Patricia Pearl Johnson; that on June 12, 1930, Harlin H. Smith and Edna P. Smith, appearing as amici curiæ, filed a verified petition in the Porter circuit court in which they set up all the facts above related and asked the court to vacate its order of adoption entered on May 23, 1930. Appellants filed a motion to strike this petition from the files, which motion was overruled. The court, after hearing evidence on the petition to vacate the order of adoption, found that the Porter circuit court was without jurisdiction to enter the order of adoption, “by reason of the said Patricia Pearl Tripp not being a resident of this county but a resident of Jasper County at this time and at the time the adoption proceedings were had in this court,” and the court entered a judgment of its own motion vacating and setting aside the order of adoption entered on May 23, 1930, and denied and dismissed the action on said petition of adoption. Appellants' motion for a new trial being overruled, they appeal to this court.

The only question presented by the several assigned errors relates to the construction of section 1, Acts 1855, p. 122, being section 913, Burns' 1926, which provides that: “Any person desirous of adopting any child may file his petition therefor in the circuit court in the county where such child resides.” It is appellants' contention that the word “resides” as used herein does not mean legal residence or domicile, but that the mere temporary residence of the child is sufficient to give the Porter circuit court jurisdiction.

The word “reside,” as well as its cognate “residence,” is employed in a wide variety of significations, and, as set forth in the case of Hayward v. Hayward (1917) 65 Ind. App. 440, 115 N. E. 966, 116 N. E. 746, “reside” or “residence” is not always used synonymously with the term “domicile,” but is often used to signify a temporary abode. But the Supreme Court, in the case of Quinn v. State (1871) 35 Ind. 485, 9 Am. Rep. 754, held that the term “reside” as used in the Constitution relevant to suffrage intended to embrace the idea of fixed or permanent residence. In the case of Maddox v. State (1869) 32 Ind. 111, the word “residence” was used synonymously with the word “domicile,” though domicile is not mentioned in the opinion.

Not only have our courts construed the words, “reside” and “residence” to be synonymous when used in a statute, but such has been the construction placed thereon by the courts of many other states. See Allgood v. Williams (1890) 92 Ala. 551, 8 So. 722;Gildersleeve v. Gildersleeve (1914) 88 Conn. 689, 92 A. 684, Ann. Cas. 1916B, 920;Sharp v. McIntire (1896) 23 Colo. 99, 46 P. 115;Delaware, L. & W. R. Co. v. Petrowsky (C. C. A. 1918) 250 F. 554, citing Maddox v. State, supra; People v. Estate of Robert Moir (1904) 207 Ill. 180, 69 N. E. 905, 99 Am. St. Rep. 205;Elam v. Maggard (1915) 165 Ky. 733, 178 S. W. 1065;Bradley v. Fraser (1880) 54 Iowa, 289, 6 N. W. 293;Modern Woodmen v. Hester (1903) 66 Kan. 129, 71 P. 279;Olivieri v. Atkinson (1897) 168 Mass. 28, 46 N. E. 422;Wood v. Roeder (1895) 45 Neb. 311, 63 N. W. 853.

[1] The term “resides” as used in the adoption statute, section 913, supra, refers to “legal residence,” and has reference to the “domicile” of the child to be adopted. We are not altogether without authority to...