Johnson v. State
| Decision Date | 30 November 1964 |
| Docket Number | No. 2,No. 20095,20095,2 |
| Citation | 136 Ind.App. 528,202 N.E.2d 895 |
| Parties | In the Matter of William David Johnson, a child under eighteen years old. William David JOHNSON, a child under eighteen, by William Johnson and Ruth Johnson, as next friends and as parents and natural custodians of said minor, Appellant, v. STATE of Indiana, Appellee |
| Court | Indiana Appellate Court |
[136 INDAPP 528] Al S. Woolbert, Anderson, Albert Ewbank, Indianapolis, for appellant.
[136 INDAPP 529] Edwin K. Steers, Atty. Gen., Edgar S. Husted, Deputy Atty. Gen., for appellee.
The appellant, William David Johnson, was charged with having committed an act of delinquency, adjudged to be a juvenile delinquent, and committed to the Indiana Boys' School. A motion for new trial was overruled, and this appeal follows.
It is argued that the court did not acquire jurisdiction of the person of the minor or of his parents; that there was a failure to issue or serve summons upon the minor or his parents, and that there was no waiver thereof.
The petition was filed by the Probation Officer on May 9, 1963, alleging that the act was committed on May 6, 1963. Said petition set forth, among other matters, that the minor was in the care and custody of his mother and father, stating their names and addresses, and asked that summons be issued requiring them to appear. Trial was had on the following day.
Section 9-3209, Burns' 1956 Replacement, provides as follows:
'After a petition shall have been filed and after such further investigation as the court may direct, unless the parties hereinafter named shall voluntarily appear, the court shall issue a summons reciting briefly the substance of the petition, and requiring the person or persons who have the custody or control of the child to appear personally and bring the child before the court at a time and place stated. * * *.' (Emphasis supplied)
It is further provided by Sec. 9-3210, Burns' 1956 Replacement:
'* * * It shall be sufficient to confer jurisdiction if service is effected at least twenty-four hours before the time fixed in the summons for the return thereof.'
[136 INDAPP 530] The principal question presented is whether the court acquired jurisdiction of the person. No question is presented as to the court's jurisdiction of the subject matter or of the particular case.
While the record in this case is not as clear as it might be, appellee does not seriously dispute the fact that no summons was ever issued or served.
The Supreme Court in Harris et ux. v. Souder, Supt. etc. (1954), 233 Ind. 287, 290, 119 N.E.2d 8, 10, has ruled upon the effect of the absence of the issuance and service of summons in the following language:
In the case before us, the court's entry on the date of trial contains the following:
'Comes now the Court, William David Johnson a juvenile is present in Court and accompanied by his father, William Johnson and represented by an attorney, Wayne Thornburg, a member of this bar.'
It will be noted from the wording of the entry that the minor, and not his father, was the one represented by an attorney. The record proper shows nothing as to the presence of the mother, but the bill of exceptions containing the evidence descloses that she was called and testified as a defense witness.
Appellee argues that there was such jurisdiction of the person in view of the actual presence of the minor and his parents and the fact that no objection was made [136 INDAPP 531] in any manner contesting such jurisdiction; that there was a voluntary appearance and any error was not prejudicial in view of such presence. Appellee quotes at length from Watson etc. v. Dept. of Public Welfare (1960), 130 Ind.App. 659, 165 N.E.2d 770, but that case differs from the present one in that there a summons was actually issued and served (though it may have been defective) and the sole parent was not only present in court but came with an attorney who entered his appearance for such parent. Neither does the case of In Re Pierson (1943), 114 Ind.App. 195, 51 N.E.2d 91, aid appellee. There a summons was issued for both the minor and his parents, and trial was had less than twenty-four hours after service, but at the time specified in the summons. The opinion does not disclose any failure to serve the summons. The court found that there was a voluntary consent to proceed with the matter without delay.
The principles which control our decision in the present case are set forth by the Supreme Court in the case of Eaton, Treasurer, v. Union County National Bank (1895), 141 Ind. 159, 40 N.E. 693, and the cases there cited. The Supreme Court at page 163, 40 N.E. at page 694 said:
'* * * As said in Kuntz v. Sumption, 117 Ind. 1, 19 N.E. 474 : 'A man may [be] subpoenaed as a witness in an action pending against him, but unless he is summoned or notified as a party, under some law authorizing a summons or notice, the proceedings are utterly void.' With no knowledge of the pending of proceedings against him, the presence of a defendant in open court, and his responses to inquiries by the court, do not constitute an appearance. Merkee v. City of Rochester [20 N.Y. Supreme] 13 Hun., 157.
.'
An appearance must constitute a part of the record, and whether there is an appearance must be determined from the record. McCormack v. First National Bank of Greensburgh et al. (1876), 53 Ind. 466; Scott and Another v. Hull and Others. (1860), 14 Ind. 136. As this court said in Newton, Administrator v. Pence (1894), 10 Ind.App. 672, 677, 38 N.E. 484, 486:
'* * * It can not be said to constitute an appearance for the record to recite merely that 'Now come the defendants."
Based upon the above authorities, we conclude that there was no appearance by the minor's parents in this case and no waiver of the issuance and service of summons, and the court therefore lacked jurisdiction of the person.
We need not decide the effect of the failure to serve summons upon the minor, but do note the following dictum in Harris et ux. v. Souder, Supt. etc., supra, 233 Ind. at p. 292, 119 N.E.2d at page 11:
'* * * In the absence of express statutory authority, neither the infant, nor his guardian ad litem, can waive issuance and service of process, nor may either admit an issue against the infant in a suit at law or in equity. * * *'
See also annotation in 90 A.L.R.2d 293.
Judgment reversed.
[136 INDAPP 533] HUNTER, Judge .
I concur only in the result reached in the main opinion and agree that the judgment should be reversed. However, I believe there are questions in this appeal that are not recognized by the main opinion that should be discussed by this court. The reasons are therefor discussed at length hereinafter.
Some of the matters discussed here are not presented by the appellant in a precise manner and ordinarily this court does not search the record for reversal. Nevertheless, where the interests of minors are involved, we are permitted to do so. McCord v. Bright (1909) 44 Ind.App. 275, 87 N.E. 654. Also, the above rule is supported in Flanagan, Wiltrout and Hamilton, Indiana Trial and Appellate Practice Sec. 2783, at p. 363 which states:
'While the court is not required to search the record for errors it is not so restricted that it must close its eyes to what is clearly before it (citing John's Cash Furniture Stores [Inc.] v. Mitchell (1955) 126 Ind.App. 231, 125 N.E.2d 827 transfer denied 2/20/56; Franklin v. Hunt (1961) 132 Ind.App. 575, 178 N.E.2d 464.)'
The present juvenile statute as amended was adopted originally in 1945 and sets forth the procedural steps necessary to bring an alleged delinquent child before a juvenile court. The section of the statute relative to information, investigation and petition as amended by the Acts of 1959 is found in Burns' Indiana Statutes Annotated (1964 Cumulative Pocket Supplement) and reads as follows:
Sec. 9-3208. ...
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