Opinion
No. 6877.
June 5, 1950.
APPEAL FROM THE CIRCUIT COURT, GREENE COUNTY, HIRAM McLAUGHLIN, J.
Parker F. Moon, Springfield, for appellants.
Robert L. Borberg, Union, for respondents.
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 inadvertence, 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 determine the correctness of the order rendered.
Rule 3.23, of the Rules of the Supreme Court of Missouri, controls. That rule was amended since the case was tried; but that amendment does not affect this case in any way. That rule as it now reads, provides that allegations of error, in order to be preserved for appellate review, must be presented to the trial court in a motion for a new trial, except in certain named cases. We have concluded that this case is one of the exceptions to that rule.
Rule 3.23, among other things, provides that no motion for a new trial need be filed as to questions of the sufficiency of the evidence to support the judgment, as provided by Section 114, Sec. 114, Laws of Missouri 1943, pages 387 and 388, Mo. R.S.A. § 847.114, relates solely to cases heard in the trial court, upon the facts, without a jury. There is no use for us to determine the case, unless the pleadings stated sufficient facts to authorize the order asked to be rendered. It is our conclusion that a motion for a new trial was not required to be filed in this sort of case, because the right of the trial court to determine the case was said to be based on alleged facts, which did not support the jurisdiction of that court.
After the rendition of the order criticised, the appellants filed their notice of appeal to this Court, and the case is thus before us.
The petition alleges all of the facts required to be alleged by Section 9608, Laws of Missouri 1947, Vol. II, page 214, Mo. R.S.A. § 9608. The consent required by Section 9609 of said Laws, Mo.R.S.A. § 9609, apparently refers to the consent of the Juvenile Division of the Circuit Court of Greene County, and not to the consent of the Juvenile Division of the Circuit Court of Franklin County. Paragraph 2 of Section 9609 reads in full, as follows: "The consent shall not be required of a parent who has, for a period of at least one year immediately prior to the date of the filing of the petition for adoption, either willfully abandoned the person sought to be adopted, or willfully neglected to provide him with proper care and maintenance. If, in any such case, any public or private agency, organization or institution, whether within or without this state, has obtained the legal custody of the person sought to be adopted, the written consent of such agency, organization or institution to the adoption shall be required except as hereinafter provided in Section 9610".
This section apparently does not refer to the consent of the Juvenile Division of the Circuit Court of Franklin County.
Paragraph 2, of the petition of appellants, alleges that the child, sought to be adopted, was found to be a neglected child on August 30, 1948, by the Magistrate Court, Juvenile Division of Franklin County, and was then made a ward of such court, and placed with the State Division of Public Welfare, Franklin County, for its supervision and that such division was ordered to place the child with respondents Brooks.
Neither the petition of appellants, the motion to quash such petition, filed February 7, 1947, nor the letter of Judge Schaper to the Judge of the Circuit Court of Greene County, states whether or not the child had been willfully abandoned by its mother, for at least one year before it was adjudged to be a neglected child on August 30, 1948, as provided in paragraph 2, of Section 9609, Laws of Missouri, for 1947, Vol. II, page 214, and no consent was required under such circumstances. Nor does there seem to be anything in Sections 9608 or 9610, Laws of Missouri for 1947, Vol. II, pages 214 and 215, Mo.R.S.A. §§ 9608, 9610, requiring the consent of the Juvenile Division of the Circuit Court of Franklin County, the Magistrate thereof, or of any of the other respondents named in the petition, before the Circuit Court of Greene County could act.
The case of Dee v. Stahl, 219 S.W.2d 883, by the St. Louis Court of Appeals, has no application here, as the opinion in that case, written by Bennick, Commissioner, construed the law governing the adoption of children, as such law stood prior to the year 1947.
We have concluded that the Circuit Court of Greene County, Missouri, was in error in quashing the petition of appellants, on motion of respondents. Such order should be set aside by the Circuit Court of Greene County, and that Court should proceed to hear the evidence in the case.
It is so ordered.
VANDEVENTER, P. J., and McDOWELL, J., concur.