State v. Jahnke

• Decision Date: 15 June 1925
• Docket Number: No. 15372.,15372.
• Citation: 273 S.W. 155
• Parties: STATE v. JAHNKE.
• Court: Missouri Court of Appeals

273 S.W. 155

STATE v. JAHNKE.

No. 15372.

Kansas City Court of Appeals. Missouri.

June 15, 1925.

Appeal from Circuit Court, Jackson County; E. E. Porterfield, Judge.

Proceeding in juvenile division of circuit court by the State of Missouri, in respect to the custody of Mary Monica Jahnke, minor. Motion by Walter C. Jahnke to set aside a nunc pro tune order vesting custody of the minor in Mamie Mulloy was overruled, and he appeals. Appeal dismissed.

Jay L. Oldham, of Kansas City, for appellant.

John V. Hill and A. A. Ridge, both of Kansas City, for the State.

ARNOLD, J.

This is an action arising in the juvenile division of the circuit court of Jackson county. The facts appearing are that Mary Monica Jahnke is a minor, 14 years of age. In 1913 her father and mother were divorced; the father obtaining the decree, and custody of the child, Mary, being awarded to the mother, Catherine L. Jahnke, who died in 1918. In 1916 the mother surrendered Mary to the jurisdiction of the juvenile division of the circuit court, upon the ground that the child was neglected by her father, Walter C. Jahnke, by reason of his failure to support her. After the death of her mother, the girl was again surrendered into the jurisdiction of the said court by her aunt, Mamie Mulloy, and on September 3, 1920, she was given temporarily into the custody of her said aunt, and the cause was continued for further hearing until September 10, 1920, on which date the court finally committed the child to her said aunt.

As shown by the abstract of the record, the records of said court did not show the order made by the court on September 10, 1920, and, for the purpose of correcting the error in this respect, Mrs. Mulloy instituted a proceeding to that end in the juvenile court on behalf of said minor. The court sustained her motion filed January 18, 1924, to correct the record of September 10, 1920, nunc pro tune, and the correction of the record was made accordingly on January 21, 1924, as of date September 10, 1920. And afterwards, to wit, on the 22d day of January, 1924, the attorney for Walter C. Jahnke filed herein a motion to set aside said order, as follows:

"Comes now Walter C. Jahnke, father and natural guardian of the above-named Mary Monica Jahnke, and moves the court to set aside the order nunc pro tunc made by this honorable court on January 21, 1924, in the above-entitled cause, as of date of September 10, 1920, vesting the custody of said Mary Monica Jahnke in Mamie Mulloy, for the following reasons, to wit:

"(1) That there is no competent evidence preserved by some minute or memorandum made by the court or clerk of the court at the time or a paper filed in the case with the clerk of this court at the time.

"(2) That the juvenile court has no jurisdiction over said Mary Monica Jahnke to make said order vesting in Mamie Mulloy the custody of said Mary Monica Jahnke, as division 3 of the circuit court of Jackson county, Mo., at Kansas City, on the 4th day of June, 1913 (in cause No. 75370), as shown by the record No. 308 at page 382, which court assumed exclusive jurisdiction over said Mary Monica Jahnke until she became of legal age."

This motion was overruled, and Jahnke duly saved his exceptions. Thereafter, on the 8th day of March, being the thirty-fourth day of the January term, Walter C. Jahnke refiled his motion to set aside said nunc pro tune entry, which was overruled by the court, and Jahnke duly saved his exceptions.

At the outset of this appeal we are con". fronted with respondent's motion to dismiss this appeal "for the reason that, under section 2610, Revised Statutes of Missouri 1919, said Walter C. Jahnke has no right of appeal to this court from the circuit court of Jackson county, Mo., at Kansas City, and because no appeal has been taken as shown by the record herein."

The language of the statute pertinent to appeals in juvenile court cases is as follows:

"An appeal shall be allowed to the child from any final judgment of delinquency or dependency, or final order of commitment made under the provisions of this article, and from any modification of such order, and may be demanded on...