Sypolts' Adoption, In re

• Decision Date: 05 June 1950
• Docket Number: No. 6877,6877
• Citation: 230 S.W.2d 877
• Parties: In re SYPOLT'S ADOPTION. DUCKER et al. v. BROOKS et al.
• Court: Missouri Court of Appeals

Page 877

230 S.W.2d 877

In re SYPOLT'S ADOPTION DUCKER et al. v. BROOKS et al.

No. 6877.

Springfield Court of Appeals, Missouri.

June 5, 1950.

Parker F. Moon, Springfield, for appellants.

Robert L. Borberg, Union, for respondents.

BLAIR, Judge.

This is an appeal, from an order and judgment of the Circuit Court of Greene County, in a child adoption case. Only the appellants have filed a brief and appeared in argument in this Court, and no one, at any time, appeared for respondents, until a motion to quash the petition was filed in the trial court by an attorney, on the ground of lack of jurisdiction of the Juvenile Division of the Circuit Court of Greene County, Missouri.

The petition filed February 7, 1949, among other things, alleged that appellants were husband and wife, of lawful age, and residents of Greene County, Missouri, and that they sought to adopt John McCord Sypolt, alias Mackey Segal, and alias John Horner (herein called the child) born out of wedlock in Greene County, Missouri, on November 25, 1946. The child was the son of one Evelyn Sypolt, subsequently, by marriage, Evelyn Sypolt Boston, then of the age of eighteen years, and a resident of another state. Appellants alleged their desire to have the custody of such child transferred to them.

It was also alleged in such petition that said child was adjudged to be a neglected child, on August 30, 1948, by the Juvenile Division of the Magistrate Court of Franklin County, Missouri, and that such child was made a ward of said court, and subsequently, and, under the instructions of the Juvenile Court of that Circuit Court, was placed with the State Division of Welfare of that county, and that such division placed the custody of said child temporarily in the control of respondents John Brooks and Ida Brooks, his wife. The prayer of the petition was that the Greene County Circuit Court should order the transfer of the custody of such child away from respondents John Brooks and his wife, and give it to appellants.

With their petition, appellants filed the written consent to their adoption of such child by its mother, then Evelyn Sypolt Boston.

Helen Hundhausen, Director of the State Welfare Office, at Union, Franklin County, Missouri, and Judge R. H. Schaper, Magistrate of Franklin County; Missouri, were also named as respondents in such petition. Summons for all respondents, with copies of the petition, were issued on April 1, 1949. It is stated in the transcript that 'No question was raised as to the sufficiency of the summons or service thereof in this case, so the same is not incorporated in this record.'

On May 2, 1949, through Robert L. Borberg, Prosecuting Attorney of Franklin County, Missouri, all of the respondents joined in a motion to quash the petition filed in the Greene County Circuit Court, which said motion to quash was as follows:

'1. Come now John E. Brooks, Ida Brooks, Helen Hundhausen and Judge R. H. Schaper, Magistrate, Union, Missouri, and inform the court that John McCord Sypolt is resident in Franklin County, Missouri, a ward of the Magistrate Court of Franklin County, Missouri, Juvenile Division; that said child was duly and lawfully placed with the State Division of Welfare, Franklin County, Missouri, for his attention and supervision and that said Welfare Office was ordered to place said child with John E. Brooks and Ida Brooks, his wife, of Franklin County, Missouri, for the purpose of providing said child with a home; and that the aforementioned facts are pleaded in plaintiff's petition filed in the above entitled cause of action.

'2. Movants plead that the Magistrate Court of Franklin County, Missouri, Juvenile Division, has duly and lawfully assumed jurisdiction over the person of said minor and that there is no provision in the law for the removal of jurisdiction from said Magistrate Court, Juvenile Division, to the Circuit Court of Greene County, Juvenile Division, Missouri, without the consent of the said Magistrate Court.

'3. Wherefore it is respectfully prayed that the Court quash the petition in the above entitled cause of action and that it be held for naught by reason of lack of jurisdiction.'

On June 4, 1949, the trial court sustained the motion to quash the petition of appellants, and taxed the costs against appellants.

The transcript does not disclose that a motion for a new trial was filed in the trial court. The clerk of that court had certified, in the transcript, that such transcript disclosed all of the proceedings in that court. To be certain that no motion for new trial was filed, and possibly omitted, by inadvertance, from the transcript, we communicated with such clerk, and are advised by him that no motion for a new trial was ever filed in the trial court. Hence, it would be useless for us to issue an order for such motion to be produced.

It is therefore incumbent upon us to determine whether or not it was necessary for appellants to file a motion for new trial in the trial court before we can...