Indiana Court Case: Scott v. Peters

SCOTT ET AL. v. PETERS. 

COURT OF APPEALS OF INDIANA 

87 Ind. App. 1; 158 N.E. 490 

October 26, 1927, Filed 

Rehearing denied February 1, 1928. 

From White Circuit Court; Paul M. Souder, Special Judge.

Proceeding by Ella Scott and another to set aside the adoption of Marie Peters by John W. Penn, making Marie Peters, individually, and as administratrix of the estate of John W. Penn, deceased, defendants. From a judgment for defendants, the plaintiffs appeal. 

Affirmed. 

COUNSEL:
Scott & Scott, George W. Julien, Clarence Cowger, George W. Kassabaum and L. D. Boyd, for appellants.

Pollard, Cartwirght & Wason, for appellee. 

JUDGES:
NICHOLS, J. Dausman, J., absent. 

OPINIONBY:
NICHOLS 

OPINION:

NICHOLS, J.--Action by appellants to set aside a judgment rendered in the Carroll Circuit Court, wherein said court entered an order adopting appellee, Marie Peters, as the child of one John W. Penn. Appellants' contention is that the judgment rendered by the Carroll Circuit Court is void for the reason that the court, in rendering said judgment, did not conform to the statute, in relation to said matter, said judgment providing that the name of the one adopted should not be the name of the adopting parent, but, because of the fact that she was a married woman, she should retain her original name. Appellants further contend that since appellee Marie Peters was a married woman, and over thirty years of age, the statute under consideration was not applicable to the case presented to said Carroll Circuit Court, and said court had no jurisdiction thereunder to determine whether she should or should not be adopted as the child of the said John W. Penn.
The first and second paragraphs of complaint were dismissed. It appears by the third paragraph of complaint that John W. Penn died February 20, 1924, intestate and the owner of real estate and personal property of the reasonable value of $ 9,000 leaving surviving him, as his only heirs at law, appellants, a niece and grand niece. There is set out in the complaint the petition of John W. Penn, by him signed and verified, for the adoption of appellee, who at the time was thirty-two years of age, the petition stating that appellee's father was dead and that her mother consented to the adoption. Such petition was presented to the court and an order of adoption of appellee as the child and heir of decedent was entered, the same to take place from and after the date of the order. It was also ordered that, it appearing that appellee was a married woman with a husband living, she should retain her own name. It is further averred that such judgment and decree adopting appellee was contrary to the statute in relation to such matters, for the reason that it provided that she should retain her own name instead of taking the name of the adoptive parent, and that, because thereof, such judgment was void and ought to be set aside.