Tynan v. Weinhard

• Decision Date: 23 November 1894
• Citation: 153 Ill. 598,38 N.E. 1014
• Parties: TYNAN v. WEINHARD et al.
• Court: Illinois Supreme Court

153 Ill. 598

38 N.E. 1014

TYNAN

v.WEINHARD et al.¹

Supreme Court of Illinois.

Nov. 23, 1894.

Appeal from appellate court, Fourth district.

Petition by Mary E. Tynan against Henry Weinhard, Michael Suis, and the unknown heirs of Jacob Young, deceased, for a nunc pro tunc order of adoption of petitioner by said decedent. There was an order of adoption, which was reversed by the appellate court. 53 Ill. App. 17. Petitioner appeals. Affirmed.Levi Davis, Jr., and H. S. Banker, for appellant.

Lee, McKeighan, Ellis & Priest and Wise & McNulty, for appellees.

This was a motion in the city court of Alton by the appellee, December 28, 1892, praying that court to enter nunc pro tunc, after the lapse of 23 years, an order of adoption of herself as the child of one Jacob Young, which order is alleged to have been made by the then judge of the Alton city court, on the 28th day of September, 1869. The allegations in support of the right to have said nunc pro tunc order entered are contained in said written motion, and are substantially as follows: ‘That appellee is the daughter of Michael and Mary E. Murray, both now deceased, and that she is the same Mary E. Murray hereinafter mentioned. That on or about the 28th day of September, 1869, being one of the days of the September term, 1869, of the Alton city court, said court being at the time in session, a petition was presented to said court by Jacob Young, of the town of Greenwood (now North Alton), in the county of Madison, aforesaid, which said petition was in substance as follows, to wit: ‘To the Honorable Judge of the Alton City Court: Your petitioner, Jacob Young, the undersigned, respectfully represents to your honor that he is a resident of the town of Greenwood, in the county of Madison, and state of Illinois; that he desires to adopt as his own a minor female child, named Mary E. Murray, and to change her name to Mary E. Young; that Mary Ellen Murray, the mother of said child, is dead; that Michael Murray, of said town of Greenwood, is the father of said child, and consents to her adoption by your petitioner, and to the change of her name as above set forth, and that said Michael Murray had notice of this application; that it will be to the interest of said child to be adopted as the child of your petitioner. Wherefore your petitioner prays your honor to enter an order declaring said minor child the adopted child of your petitioner, and changing her name to Mary E. Young, and your petitioner will ever pray, etc. [Signed] Jacob Young.’That on the same day an order was made by said court in substance as follows: ‘Now on this 28th day of September, 1869, comes Jacob Young, and presents his petition to court for leave to adopt said Mary E. Murray as his own child, and to change her name to Mary E. Young, and the court being satisfied of the truth of said facts stated in said petition: that the said petitioner resides in the town of Greenwood, in the county of Madison, and state of Illinois; that said Mary E. Murray is a minor, aged four years on the 20th day of May, 1869; that the mother of said child is dead; that her father had notice of the presentation of this petition, and consented to the adoption of the said child and to the change of her name: and the court being satisfied that such adoption will be for the best interests of such child: It is ordered by the court that from this time henceforth the said Mary E. Murray shall to all legal intents and purposes be the child of said Jacob Young, and that her name be changed to Mary E. Young. It is further ordered that the petitioner pay all costs of this proceeding.’ That said order was duly approved by the judge of said court, and was indorsed ‘Approved’ by the judge of said court, over his signature, written on the back of said order, but through mistake or misapprehension on the part of the clerk of said court said order was not entered on the records of said court, but was delivered, together with said petition, back to said Jacob Young, who took the same home with him, supposing it was handed to him to keep as evidence of his having adopted said child; and thereafter said Jacob Young frequently showed said petition and order to other persons in support of his assertions that he had adopted said Mary E. Murray as his child, and she always thereafter passed as his adopted child, and so considered herself. That said Jacob Young departed this life on or about the 19th day of July, 1875, and without issue. That the names of the heirs of said Jacob Young are unknown to the said Mary E. Tynan, and by diligent inquiry cannot be ascertained. That after the death of said Jacob Young said petition and order cannot be found, and have since never been found. That said Mary E. Tynan is now a resident of the city of Portland, in the state of Oregon. That Jacob Young removed from the town of Greenwood to the city of Portland, in Oregon, about the month of May, 1873. That Mary E. Tynan resided with him from the time of her adoption until his death, and was known and treated as his daughter, and went by the name of Mary E. Young during all that time. That on the 5th day of May, 1883, she was married to one John Tynan, in the city of Portland, state of Oregon. The said Mary E. Tynan moves the court to enter said order of adoption nunc pro tunc as made by this court at the September term of this court, 1869. Mary E. Tynan.'

At the February term, 1893, Michael Suis, heir of Jacob Young, deceased, and Henry Weinhard, successor in interest, appeared as defendants, and entered their motion to dismiss appellee's said motion and petition, but the court denied the same, and thereupon said defendants demurred to said motion and petition of appellee for insufficiency, which demurrer was overruled on February 7, 1893. On February 8, 1893, defendants filed their answer traversing each and every material allegation of appellee's said petition and motion, and on the same day the court, by its order of that date, referred the cause to a special master in chancery, to take the testimony. He reported all the testimony taken by him. On March 15, 1893, a final order and decree was entered in this cause that by mistake or inadvertence of the clerk of this court said order was never entered on the records of this court, and that said order so made by this court has been lost or destroyed, and cannot be found; that the said order of adoption so made by this court at said September term, 1869, be entered nunc pro tunc upon the records of this court by the clerk of this court as of said 28th day of September, 1869, and that the petitioner, Mary E. Tynan, pay the costs of this proceeding.

MAGRUDER, J. (after stating the facts).

The appellate court, by its judgment in this case, has reversed the order and decree of the city court of Alton, which directed that the order of adoption alleged to have been made by said city court at its September term, 1869, should be entered nunc pro tunc upon the records of said city court by the clerk thereof as of the 28th day of September, 1869, and has remanded the cause to said city court, with directions to that court to enter an order denying the motion of Mary E. Tynan, who was appellee in the appellate court, but is appellant in this court, and dismissing her petition, with all costs to be taxed against her. We concur in the conclusion reached by the appellate court.

The petition for adoption was never filed in court. No entry of the proceeding was ever made on any docket, either of the clerk or of the judge. No order of adoption was made by the judge in any pending suit or proceeding. No minute or memorandum or memorial paper of any kind was in existence upon which an order nunc pro tunc could be based. It is alleged that on September 28, 1869, Jacob Young came into court with a petition drawn for the adoption of Mary E. Murray, and with an order drawn granting the prayer of the petition, and declaring Mary E. Murray to be the child of Jacob Young, and changing her name to Mary E. Young; and proof is introduced for the purpose of showing that this petition and order were handed to the clerk of the court, and the clerk handed them to the judge, and the judge marked on the order ‘Approved,’ and handed the papers to the clerk, and the clerk, without filing them or docketing the case or making any entry of any kind, handed the papers back to Jacob Young, who carried them off, and never returned them to the clerk or into court. Jacob Young left Illinois for Oregon in 1873, and died in 1875. His wife married again, and died in 1886. Mary E. Murray went to Oregon with Young and his wife, and married Tynan in 1883, under the name of Mary E. Murray, and not under the name of Mary E. Young. The papers said to have been thus carried away by Young are not produced, but are alleged to have been lost or destroyed. On December 28, 1892, more than 23 years after September 28, 1869, Mary E. Tynan makes a motion in the Alton city court that an order adopting herself as the child of Jacob Young be entered nunc pro tunc as of September 28, 1869, and such an order is entered on March 15, 1893.

It is well settled in this state that amendments of the record will not be allowed after the close of the term at which the record was made, unless there are some memoranda, minutes, or notes of the...