Opinion
Decided March 8, 1932.
Adoption — Statutes strictly construed — Section 8024 et seq., General Code — Appointment of next friend and consent — Nunc pro tunc entry cannot amend record — Substitution of next friend.
1. Adoption is purely statutory, and statutory provisions should be strictly complied with (Section 8024 et seq., General Code).
2. Nunc pro tunc entry is not proper to amend record to show that court did some act at former term which was not then performed.
3. Nunc pro tunc entry ordering name of next friend, appointed to appear for child, stricken out after entry of adoption decree, and substituting another who had not been appointed, held erroneous (Section 8024-1, General Code).
ERROR: Court of Appeals for Franklin county.
Mr. John F. Seidel and Mr. Henry H. Metcalf, for plaintiffs in error.
Mr. Grover C. Brown and Mr. Guy V. Fridley, for defendants in error.
This is an action involving the adoption of a minor child, Katherine Privette. The child in question was adopted by proceedings in the probate court of Franklin county, Ohio, by Walter E. Smith and Uda May Smith.
From such proceedings the mother of the child prosecuted error to the court of common pleas. The court of common pleas held that there was an irregularity in such adoption proceedings, and remanded the case to the probate court for such proceedings in reference to adoption as conform to the statutory provisions in reference to the appointment of a next friend.
From such judgment of the court of common pleas remanding the case to the probate court error is prosecuted to this court.
Sections 8024 et seq., General Code, provide what course shall be pursued in the adoption of children. The adoption of a child is purely a statutory creation; the provisions of the statute should, therefore, be strictly complied with.
Section 8024-1 provides: "Upon the presentation of such petition the same shall be filed with the court and the said court shall appoint a day for the hearing of said petition and the examination, under oath, of the parties in interest, not less than ten nor more than thirty days from the filing of the petition."
This section further provides: "If it shall be necessary, under the provisions of this act, * * * that a discreet and suitable person shall be appointed as next friend to the child sought to be adopted, the court shall make such appointment and shall thereupon assign a day for the hearing of said petition and examination of the parties in interest, not less than ten nor more than thirty days from the time of appointing the next friend."
It appears from the record in this case that on January 30, 1930, the petition for adoption of the minor child in question was filed; that on the same day the court appointed a next friend for such minor child in the person of Ruth Hessan.
On February 10, 1930, the consent to such adoption was filed by Katherine L. Smith, as the next friend of said minor, and on the same day the court decreed the adoption of the said minor to Walter E. and Uda May Smith. In this adoption decree Katherine L. Smith was named as the next friend.
Subsequently Hazel Wagner, the mother of the child, filed a motion to set aside the adoption proceedings as above related upon the ground that the answer and consent of the next friend were not filed by Ruth Hessan, who had previously been appointed by the court, but by Katherine L. Smith.
Subsequently a nunc pro tunc order was entered in the probate court ordering the name of Ruth Hessan stricken from the order of January 30, 1930, appointing a next friend for Katherine Privette, and the name of Katherine L. Smith entered therein as the person appointed next friend for said Katherine Privette. "It was therefore ordered that the substitution of Katherine L. Smith for the name of Ruth Hessan be and hereby is now entered by the clerk of this court as of the 30th day of January, 1930."
The records of the court clearly show that Ruth Hessan was appointed next friend for this minor. The records show with equal clearness that on the day of the hearing Katherine L. Smith filed the consent for such adoption as next friend of said minor child.
Can such correction be made by a nunc pro tunc entry?
The scope and purpose of a nunc pro tunc entry is clearly set forth by our Supreme Court in the case of Cleveland Leader Printing Company v. Green, 52 Ohio St., at page 487, 40 N.E. 201, 49 Am. St. Rep., 725: "The province of a nunc pro tunc entry is to correct the record of the court in a cause so as to make it set forth an act of the court, which though actually done at a former term thereof, was not entered upon the journal; and it cannot lawfully be employed to amend the record so as to make it show that some act was done at a former term, which might or should have been, but was not, then performed."
From a consideration of the record, and the above and various other authorities cited, we are of opinion that there was irregularity in the adoption of this minor child.
The judgment of the lower court will be affirmed, and the cause remanded for the purpose of having such proceedings taken in reference to said adoption as conform with the statutory provisions in regard to the appointing of a next friend.
Judgment affirmed.
ALLREAD, P.J., and HORNBECK, J., concur.