State v. Woerner

• Decision Date: 04 April 1927
• Citation: 294 S.W. 423
• Parties: STATE v. WOERNER et al.
• Court: Missouri Court of Appeals

294 S.W. 423

STATE v. WOERNER et al.

No. 15873.

Kansas City Court of Appeals. Missouri.

April 4, 1927.

Rehearing Denied May 9, 1927.

Error to Circuit Court, Jackson County; E. E. Porterfield, Judge.

Motion by Reid Woerner and another, minors, by Bryan J. Woerner, their father and natural guardian, against the State, to amend judgment amended by nunc pro tune entry awarding custody of minor children to Mrs. Otto, their maternal grandmother. The motion was overruled, and movants bring error. Defendant in error moved to quash the writ of error. Writ dismissed.

Ira B. McLaughlin, P. H. Jackson, and J. Leo Ryan, all of Kansas City, for plaintiffs in error.

C. R. Leslie and John Hyde, both of Kansas City, for the State.

ARNOLD, J.

This is a controversy originating in the Juvenile division of the circuit court of Jackson county, Mo., and involves the care and custody of two alleged neglected minor children.

On December 3, 1924, a petition was filed, which reads as follows:

"In the Circuit Court of Jackson County, Missouri, at Kansas City, Missouri, November Term, 1924, Juvenile Division. To Honorable Judge of the Juvenile Court, Jackson County, Missouri. State of Missouri v. Reid Woerner, Ruth Woerner. No. 9039.

"Comes now James L. Gillham, a resident 01' said county and a reputable person, and says that he is informed and believes that Reid Woerner and Ruth Woerner are infants under the age of eighteen years, not now an inmate of any state institution or any institution in corporated under the laws of the state for the care and correction of delinquent children, and are neglected children, within the meaning of the law, to wit, in that they are homeless and dependent upon the public for support.

"Your petitioner, therefore, prays that the matters herein be inquired into, and that said child, with all other persons deemed necessary, be so summoned to appear in court to receive and obey such orders as to the court may seem meet and proper.

                              "James L. Gillham, Petitioner."
                

On December 5, 1924, and during the November term of said court, defendants Reid Woerner and Ruth Woerner were brought into court by and with their maternal grand mother, Mattie Otto, and their uncle, C. R. Leslie. Relatives of said defendants, sisters of Bryan J. Woerner (the father of defendants), and the mother of said Bryan 3. Woerner also were present in court.

It appears the juvenile court had no official stenographer, and no shorthand notes were taken of the proceedings and testimony, and no notes of any kind were made. Witnesses were sworn and examined. The maternal grandmother, Mrs. Otto, testified, as stated by the court from memory, that she was the mother of Frances Woerner, deceased, who was the mother of the defendant children; that Frances Woerner had died a few days previously; that Bryan J. Woerner, the father, had gone away from Kansas City and had been absent for several months; witness did not know his place of residence at that time; that before he left Kansas City he had lived at the home of his mother.

It further appears the relatives of Bryan J. Woerner then present in court did not know his whereabouts, but said he was absent from Kansas City and Jackson county, so far as they knew. They asked the court to continue the case, so they could notify him of the proceeding. Pursuant to this request the court made an order continuing the cause for a period of four weeks, and, at the same time, rendered judgment making defendant children wards of the court, and gave their custody into the hands of their maternal grandmother, Mrs. Otto. Said order is in words and figures as follows:

"10th day, November Term, 1924. Friday, Dec. 5, 1924. State of Missouri v. Reid Woerner, Ruth Woerner. No. 9039. Now on this day comes the said Reid Woerner, age 4 years, and Ruth Woerner, age 18 months, in person and by grandmothers, uncle and aunts, and, it appearing to the court from the evidence that the said youths are neglected by their father, it is ordered by the court that the said youths be made wards of this court and committed to their grandmother, Mrs. Otto, 2331 Cleveland Ave., and this cause is continued for four weeks."

At the expiration of the four weeks and on January 2, 1925, there was another hearing at which some of the relatives of Bryan J. Woerner were present and stated they were unable to locate him. Thereupon the court confirmed the order and judgment of December 5, 1924, in the following words and figures:

"22d day, November Term, 1924. Friday, Jan. 2, 1925. State of Missouri v. Reid Woerner, Ruth Woerner. No. 9039. Reid Woerner and Ruth Woerner order of 12/5/24 confirmed and children to remain with grandmother."

It appears that at the March term, 1925, to wit, on April 17th, a motion of Bryan J. Woerner to set aside the judgment was overruled. When said motion was called, a full hearing was had on the merits of the case, with the result as indicated. In a short time thereafter on petition of Bryan 3. Woerner, this court issued a preliminary writ of habeas corpus, and a return thereto was filed by Mattie Otto. who had the custody of the defendants. The judgment of December 5, 1924, and confirmation thereof, January 2, 1925, were set forth in the original return; but an amended return was filed showing the judgment entry of December 5, 1924, and as amended nunc pro tune, June 16, 1925, and the petition for the writ of habeas corpus was thereupon dismissed by the petitioner. The nunc pro tune entry is as follows:

"It appearing to the court that the judgment entry made herein on December 5, 1924, in Book 12, at page 634, wherein the infants Ruth Woerner and Reid Woerner were found to be neglected by their father, was erroneously entered of record, so that it did not recite fully the actual judgment rendered by the court, to wit, that said judgment entry recited only as to the neglect of said infants; that they were neglected by their father, whereas, in conformity to the complaint, the facts stated in which, the court found to be true, upon hearing the evidence, the entry should have recited that said infants were neglected by their father, and were `neglected children' within the definition of the Revised Statutes of Missouri for 1919, as amended in Laws of Missouri, 1923, p. 153, namely, that they are homeless and dependent upon the public for support, it is ordered by the court that the said youths be made wards, of this court and committed to their grandmother, Mrs. Otto, 2331 Cleveland avenue, and this cause is continued for four weeks."

On October 2, 1925, the defendants appeared by Bryan J. Woerner, acting for and on their behalf, and filed a motion to amend the judgment "to show the actual judgment rendered in conformity with the record proper, minutes, and files herein." The motion is as follows:

"Comes now Reid Woerner and Ruth Woerner, infants, aged five and two years, respectively, by their father, natural guardian and only living parent, Bryan J. Woerner, who prosecutes this motion for and on behalf of his said infant children, and appearing specially and for the purpose of this motion only, respectfully shows to the court that on December 5, 1924, and at the November, 1924, term of this court, a judgment was rendered awarding the infants aforesaid to their grandmother, Mrs. Otto. That on June 16, 1925, and at the May, 1925, term of this court said judgment was amended by nunc pro tune entry herein and the following words and phrases...