Barden v. Flannery

| Mass. | May 28, 1926

Braley, J.

The petitioners on April 2, 1925, filed in the court of probate a petition for leave to adopt John Harrington, otherwise known as William E. Barry, born June 17,1911, a child of Catherine Harrington of parts unknown. The order of notice dated April 14, 1925, and returnable May 6, 1925, directed personal service on her, or if she was not found within the Commonwealth, service was to be by publication. The child over fourteen years of age assented in writing to the adoption, and his probate guardian, the appellant, waived notice in writing of service of the citation, while service on the mother was by publication. The court on May 6, 1925, entered the following decree.

“On the foregoing petition, it appearing that no one appears to consent or object thereto, Robert C. Parker of West-field, in said county is hereby appointed guardian ad litem of said child, with power to give or withhold consent/

If under G. L. c. 210, § 2, the consent of the probate guardian was required, § 5, provides, “If, after such notice, a person whose consent is required does not appear and object to the adoption, the court may act upon the petition without his consent, subject to his right of appeal, or it may appoint a guardian ad litem with power to give or withhold consent.” The decree of May 6, from which no appeal was taken and which never has been reversed, was in accordance with the statute, and the consent of the guardian ad litem to the adoption was valid. The general appearance of the guardian, which was not filed until the guardian ad litem had" been appointed, and the merits had been partially heard, did not abrogate or modify the force and effect of the decree. Sewall v. Roberts, 115 Mass. 262" court="Mass." date_filed="1874-06-20" href="https://app.midpage.ai/document/sewall-v-roberts-6417709?utm_source=webapp" opinion_id="6417709">115 Mass. 262, 275. Edds, appellant, 137 Mass. 346" court="Mass." date_filed="1884-06-27" href="https://app.midpage.ai/document/edds-6421359?utm_source=webapp" opinion_id="6421359">137 Mass. 346. See Dumain v. Gwynne, 10 Allen, 270. The court had jurisdiction of the parties and of the petition, and the sole contention of the appellant, that the final decree granting the petition was erroneous because he never consented thereto, cannot be maintained.

Decree affirmed.