Taylor v. Ottinger

• Decision Date: 07 June 1952
• Citation: 193 Tenn. 688,249 S.W.2d 899,29 Beeler 688
• Parties: TAYLOR v. OTTINGER et ux. 29 Beeler 688, 193 Tenn. 688, 249 S.W.2d 899
• Court: Tennessee Supreme Court

Page 899

249 S.W.2d 899

TAYLOR v. OTTINGER et ux.

29 Beeler 688, 193 Tenn. 688, 249 S.W.2d 899

Supreme Court of Tennessee.

June 7, 1952.

Hugh C. Simpson, Knoxville, for appellant.

Joseph A. McAfee, Egerton, McAfee, Armistead & Davis, Knoxville, for appellees.

NEIL, Chief Justice.

The sole question presented on this appeal involves the right of the appellant to dismiss her appeal from the Juvenile Court of Knox County to the Circuit Court of said county, where it was pending for trial de novo. The trial judge refused appellant the right to dismiss her appeal 'without prejudice' and his action in so ruling is made an assignment of error in this Court.

The proceedings in the Juvenile and Domestic Relations Court of Knox County, Tennessee, involved the custody of the infant child 'Baby Boy Smith'. The parents of the child were living apart at the time of his birth, and each signed a paper writing relinquishing their right to the custody and control of said child.

The mother of the child later filed her petition in the Juvenile Court alleging that the said child was not a delinquent child and had not been abandoned; that he was still in the custody of the court. The petition prayed the court for 'a proper citation directing the proper officer to at once take said Eugene Dale Smith into custody and upon a proper hearing said Eugene Dale Smith be dealt with as the law in such cases may provide and direct.'

An answer to the foregoing petition was filed by Mr. and Mrs. F. A. Ottinger in which the allegation is made that the care, custody and control of said child was awarded by proper order to them, and that the order was entered after notice to the petitioner and a hearing in due course. The answer contains the following recitations:

'It is denied that the proceedings giving the custody of said minor child to your respondents for adoption is invalid as alleged for the reasons set forth on page 3 of said petition. On the contrary your respondents would show and aver that its decree awarding the custody to respondents was not based entirely upon the voluntary surrender of said baby executed by petitioner, but was also based upon the findings of the Court that said child was dependent within the purview and meaning of the acts of the Legislature creating this court and as defined by the General Law of this State.

'Your respondents would further show and aver that said decree of February 27th is valid, binding and final and respondents hereby charge and aver that said decree fully adjudicated all questions with reference to the proper custody of said Eugene Dale Smith and respondents expressly plead said decree as res adjudicata to the matters and charges set forth in this petition.'

The petitioner filed an amended petition on March 19, 1951, reiterating the charge that the paper writing she signed purporting to surrender the custody of her child was the result of undue influence and ignorance of her rights; that 'She was frustrated and mentally distressed by her experience of very recent childbirth and physical condition.'; that she was never given notice of the Juvenile Court proceedings nor was any service of process served upon her. The amended petition charged that the proceedings based upon the surrender of the child were 'invalid, null and void.'

The decree of the court, based upon the foregoing pleadings and 'oral proof introduced before the court', is as follows:

'The allegations of the original petition as amended is not sustained by the proof and the evidence preponderates in favor of the allegations of the answer thereto and therefore said petition as amended should be dismissed, that is to say:

'1. The Court's decree heretofore entered in this cause on February 27, 1950, adjudicating said Baby Boy Smith had been abandoned and surrendered by his mother, Dulia Weaver Smith, and holding said child had become a public charge and placing said infant in the custody and care of the respondents, Mr. and Mrs. Fred A. Ottinger, for adoption, was unappealed from and had become final and said decree finally adjudicated and determined the issues in regard thereto as made in the present petition and therefore the plea of former judgment should be and is sustained;

'2. The petitioner, Dulia Weaver Smith, was a party to said proceedings held on February 27, 1950, and had been duly served with process therein and the Court had jurisdiction of the proceedings had for the disposition thereof as provided in said decree;

* * *

'It is, therefore, ordered, adjudged and decreed that the petition of Dulia Weaver Smith be and is dismissed and that the costody of Baby Boy Smith remain in Mr. and Mrs. Fred A. Ottinger for adoption as heretofore decreed in this cause.'

Pending this appeal to the Circuit Court the petitioner, Dulia Weaver Smith moved the court for an 'order of voluntary non suit', the same to be 'without prejudice', and reciting that subsequent to her appeal she had filed a bill in the Chancery Court of Knox County, Tennessee, to set aside and vacate as fraudulent the judgment of the Juvenile Court of said county. This order was duly entered, but was later modified upon motion of respondents, as follows:

'It is therefore ordered, adjudged and decreed that the appeal be dismissed and the judgment of the Juvenile Court will stand as though no appeal had been prosecuted therefrom.'

It is from this amended order of non suit that the petitioner was granted an appeal to this Court.

The contention of the appellant is that unless her 'non suit' is 'without prejudice' she will be greatly...