*1 471 permit. require judicata us to of res law does not party wrong Company done to this Railroad appellants made had knew the contract for it Railroad and did for their not call 1941 benefit June, Adjustment seem views Board’s thereto. These attention R. & Nashville v. Louisville sanctioned Steele recently decided Ed. Co., 172, 65 89 L. S. Ct. Supreme Court United States. complaint should bill
The demurrer have been overruled. and remanded.
Reversed
Dissenting Opinion. dissenting opinion. J., Roberds, delivered a Adjustment Board Railroad I think action very presented question adjudicata. to it, was res arrange- replacement understand, as I was whether permanent. temporary or ment was Wright Fitzgibbons. v. May 14, April Suggestion
(In Error Overruled 1945. Banc. 1945.) (2d) 709. No. 35826.] So. [21 *2 Henry Hezel, Smith, Jones, W. D. all of John T. M. Cleveland, *3 appellee. Creekmore,
Creekmore Jackson, & *4 Argued appellee. orally by Creekmore, Rufus for opinion Smith, J.,C. delivered the of court. the petition compliance Fitzgibbons with filed a Mrs. adoption for a child of the Code Wright Wright ap- mother. Mrs. which Mrs. peared, was the adoption objecting answer filed an cross-petition custody praying child be the the appel- corpus. The a writ of awarded habeas petition alleged consented had lee’s adoption abandoned to this and also she had against hearing both for and evidence, child. After adoption a decree court rendered child, reciting about five then child, which was years defendant old, half had been “abandoned age,” for the best about three weeks that was when petitioner, adopted interest of the child to petition granted adoption for corpus preliminary ofwrit habeas child and dismissed the granted previously that had been having objected appeared given theretofore of her her consent thereto appear, adoption, ineffective will hereinafter became as to be for the decree of court below sus- order finding appear warranted must that it was tained it *5 476
from the evidence that the child had been abandoned 1269, Code 1942. appears It from without conflict that in evidence July, appellant, years age 1938,the then seventeen of and expectant an became unmarried, mother and entered a Army Salvation Home for Unmarried Mothers for purpose expected giving birth to the child. theAt suggestion appellant appellee agreed of a sister of the to take and for the care child. she communicated appellant, thereupon saying, to who her a wrote letter ‘‘ among things, you you baby, other Odie, said wanted the you you well it, can have but I it will take to and Jax to ’’ you go get request- will have to there and After it. then ing appellee clothing, to send a “a bottle and nipple” expected baby, thermos bottle and she please anybody said, “Odie, don’t tell about me.” On July girl, again birth 27th, after the of the finally appellee, saying, among things, wrote the other “I up my you my baby, made mind can have do it I hate to stating I but know best for me and too.” After nothing job that she had and look no to forward to, you anyone you?'” said, have not “Odie, told Army Tampa, pur- Home was Florida, Salvation at and appellant request to a from in letter written suant August brought Tampa and went baby appellant and her home in appellant’s Daytona, place grand- at Florida, August appellee, father also lived. On 23rd the who Eastman, and the then the wife of Oscar S. agreement, Reporter into a written which the will entered agreed which the full,1 set out 1<(Agreement. day August, Agreement, 23rd entered into Made and “This wife, Odie 1938, by Eastman his D. between
A. Brown, single, Beach, Florida, Mae Daytona and Stella Eastman Jacksonville, Florida, witnesseth: “have the full should and her then husband custody and control and education care, absolute agrees appellant “consents and child,” any adoption proceedings instituted hereafter to be way agrees *6 as- hinder, no or to in Eastmans and the said attempt any authority or over control sert to- assert or ’’ day. child and after this the said from point But inis conflict. on the evidence From this appellee, which introduced from evidence evidently right believe, did, and to, had the below court appears that the the fact concealed it enjoined and do, to so on hers, child was child, contributed no sort of control over exercised nothing any, wel- in, if little, and interest to, exhibited just prior this fare until institution proceeding, wanted that she when she notified the the child back. any part imports conduct on the
“Abandonment forego pa- purpose parent all a to evinces settled “Whereas, Brown on Stella Mae born the said there was to G., daughter, said July, 1938, a who has been named Sandra 16th of being finan- being Mother unable child born out of wedlock and its desiring cially properly and to care for the said and otherwise education, good proper care home and the and it shall have that parties therefore, agreed by hereto the said it and between the that Eastman, wife, the full shall have Eastman Odie and his care, custody child absolute control and -education and and hereby day they agree consideration there- in from after this and and her of, properly support to educate for child and to and care the said agreed ability by the said Stella is further fullest and it to their thereof, hereby and she consents consideration Mae Brown that in proceedings agrees any adoption be instituted hereinafter to to attempt assert, agrees way to in hinder or to no or and said Eastmans authority any from and after over the said child control or assert day. this signa- Whereof, parties their affixed hereto “In Witness day year written. first above tures Eastman- “Oscar S. “Odie Eastman “Stella Mae Brown” relinquish parental all rental duties claims Adoption Sec. Amis Children, 42; child.” 1 Am. Jur., Separation, 216. If this evidence on Divorce bring rule, case within that would be hard does not Consequently, evidence would do so. conceive to the what holding no below committed error that court happily child. The is now had abandoned the where she and her hus- Cincinnati, married and lives together per may month. band about It earn $500 repented re- former of her conduct desires has parental rights child, and are not sume over the we proper say prepared ain case be this can not to have existed, “but abandonment is shown done, when really judicial question whether it has been becomes consistently with the welfare of be, or can terminated, the child.” Adoption Children, 1 Am. Sec. 42. Jur., question primarily the decision of court perceive any it committed unable to below and we are reaching decision it did. error *7 East- husband, her former Eastman and Mrs. wife and she now of V. G. been divorced is man, have join petition Fitzgibbons, did not who adoption however, here rendered, The decree of the child. Marie Brown be “that minor Louise recites petitioner hereby adopted Fitz- Odie Eastman is Fitzgibbons, gibbons etc. Her husband,” her and Y. G. decree and have been included in this not husband should says binding on no that one, him it is but as to may him to include therein this Court error if was nevertheless him therefrom and then affirm the eliminate appellant say, for the court as counsel But, decree. rendering may decree been influenced in below giving the child not alone to Mrs. it was the fact that Fitzgibbons also, her husband without to' but rights parental may her denied the not have herself had testified that was over the child. She giving Mr. and Mrs. Eastman the child influenced was confidence in Mr. Eastman and she had the-fact him. For error willing welfare to the child’s to trust will reversed and alone, it he and for this decree, in the remanded. the cause remanded.
Reversed and
On Suggestion of Error. opinion Alexander, of the Court on J., delivered the suggestion of error. suggestion appellees filed invites at- of error probable our cause reversal of the
tention to the effect upon quashed part of the chancellor’s decree which prayer corpus granted of habeas under the the writ appellant’s distinctly opinion former cross-bill. Our upon ground cause was reversed stated husband, decreed was party proceeding, was a the former alone whereas decree, “for this for this it was error and that it was reversed. alone” that yet disposition final reversed, decree
The entire corpus abide the habeas left to event writ of hearing upon remand.
Overruled. et al. v. Lynch.
Lynch 1945.) Sept. 24, (In Banc. (2d) 35905.] 263. No. So.
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