State ex rel. Washer v. Porterfield

• Citation: 258 S.W. 722,226 Mo.App. 505
• Parties: STATE EX REL. EB J. WASHER, RELATOR, v. EDWARD E. PORTERFIELD, JUDGE, ETC., RESPONDENT
• Decision Date: 11 February 1924
• Court: Court of Appeals of Kansas

258 S.W. 722

226 Mo.App. 505

STATE EX REL. EB J. WASHER, RELATOR, v. EDWARD E. PORTERFIELD, JUDGE, ETC., RESPONDENT

Court of Appeals of Missouri, Kansas City

February 11, 1924

Original proceedings by State on relation of Eb J. Washer against Edward E. Porterfield, Judge of Juvenile Court of Jackson County, Missouri.

Alternative writ quashed.

Jacobs & Henderson for relator.

Scarritt Jones, Seddon & North for respondent.

TRIMBLE P. J. Bland, J., concurs in result.

OPINION

TRIMBLE, P. J.--

This original proceeding in mandamus was brought by relator, as father of Patricia Washer, a nineteen-months old infant, against Honorable EDWARD E. PORTERFIELD as judge of the juvenile court of Jackson county, Missouri, to compel him to allow an appeal in a certain matter pending in said juvenile court, entitled State of Missouri v. Patricia Washer, wherein the child was charged with being a neglected child. (The authority for such matters being considered and adjudicated in the juvenile courts of counties having over fifty thousand inhabitants, is found in article VI, chapter 21, Revised Statutes 1919.) The charge in the application for the writ was that respondent as judge of said juvenile court had taken the child from relator's possession, and, after adjudging that it was a neglected child, had committed it to the custody of its mother, Ursula Catherine Washer, without hearing any evidence that the child was neglected or delinquent; that relator took the specified necessary steps to appeal and duly tendered a supersedeas bond, but said juvenile judge refused to accept or approve said bond and also refused to allow an appeal. The application for the writ and the alternative writ itself cover not only the allowance of an appeal but also seek to have the judge of said juvenile court "accept said supersedeas bond in the same cause and upon the filing of said bond, turn over to the relator Eb J. Washer" the said infant Patricia Washer.

From the return of respondent, the answer thereto and from the statements respectively made in open court by opposing counsel, we gather the following facts:

The infant, Patricia Washer, was adopted by Eb J. Washer and Ursula Catherine Washer, his wife, in May, 1922, and all three then lived thereafter in Jackson county, Missouri. Differences apparently arose between husband and wife, and, on account of the conduct of his wife, so the husband states in his application for the writ, he "deemed it advisable to remove the said Patricia Washer from the home a short time" and he took the child to Camelsville, Kentucky, and was gone for a period of three and one-half months. It is further stated that he then sent the child to Jackson county, Missouri, in charge of a probation officer from the juvenile court at Lexington, Kentucky; that when the Kentucky probation officer reached St. Louis, the mother, Ursula Catherine Washer, tried to get possession of the child but the probation officer proceeded to Kansas City with the child, and upon arrival of the child at Kansas City in possession of the Kentucky probation officer, the probation officer of Jackson county, Missouri, filed a petition in the Jackson county juvenile court, on December 12, 1923, charging that Patricia Washer was a neglected child suffering from the cruelty and depravity of both its parents. (Both the application for the alternative writ and the latter writ itself says the charge in the petition was that the child was a delinquent and neglected child, but the petition itself shows that it charged that Patricia was a neglected child, and manifestly it is difficult to see how a child of that tender age could be delinquent.)

On December 15, 1923, the juvenile court assumed jurisdiction over the child and the minute entry of the clerk shows that Patricia Washer was "made ward as neglected, and committed to foster mother, Mrs. Eb Washer, 914 Armour Boulevard. Mr. Washer, foster father, may visit the child at the mother's home every other day, but he is not to take the child our of her sight or possession. Child to be under careful supervision of P. O." (Probation Officer.) However, another minute entry made the same day shows the same entry except that the commitment of the child is not a final order but the child is committed to the mother, Ursula K. Washer, "pending divorce trial."

The record of the order as fully written out and spread upon the records of the court recites that it appearing to the court that a divorce action, instituted by the husband (Eb J. Washer) on December 12, 1932, against his wife, was pending in the circuit court of Jackson county, Missouri, in which the plaintiff was asking a decree awarding him the custody of the child, and it further appearing that Eb J. Washer had, on September 3, 1923, taken said child to Kentucky and secreted it in that State, until it was returned to this State by Ursula Catherine Washer on or about December 12, 1923, "and that said child was in the possession of said Ursula Catherine Washer at the time of the institution of this proceeding, and the court having heard all of the evidence and being fully advised in the premises,

"It is ordered and adjudged that pending the hearing of the aforesaid action for divorce, said Patricia Washer be and she is made a ward of this court and committed to the care of Ursula Catherine Washer at her home 914 E. Armour Boulevard, Kansas City, Missouri, under the care and supervision of the probation officer of Jackson county, Missouri; that said Eb J. Washer be permitted to visit said child at its mother's home every other day, but that he shall not take said child out of the sight or possession of the said mother."

The next day motion for new trial was filed...