Ind.)

(148 N,E.)

pensation Act (Acts 1915, c. 106). If the in-
jured workman is able to do work of a dif-
earn some
ferent character and thereby
wages, without injury to himself, then it is
his duty to accept that kind of employment
when procured for him; and if he refuses
employment suitable to his capacity, his
compensation shall cease during the time he
declines the employment. That means that
if the employer is of the opinion that in
truth the employé is able to do work of a
different character, and desires to diminish,
on that basis, the amount of compensation
for which he is liable, it is his privilege to
procure for the workman employment of such
a character as, in his judgment, is suitable
to the workman's capacity. No order of the
Industrial Board is necessary to confer that
privilege upon the employer. The law does
that.

[3] In that respect there is nothing for the board to do until employment has actually been procured and refused. Should a dispute arise as to whether the employment thus procured is suitable to the workman's capacity, if he have any capacity, it will be the duty of the board to decide the controversy when properly presented. It follows that all the board has done and all it has attempted to do with respect to this feature is premature-mere speculation. No employment had been procured, and none refused. That entire controversy is purely imaginary. There was nothing legitimately before the board under section 32.

The conclusion we have reached makes it unnecessary to consider the third contention. The award is reversed, and the Industrial Board is directed to dismiss the petition, at the cost of the appellee.

In re PERRY. (No. 12232.) (Appellate Court of Indiana. June 2, 1925.) 1. Amicus curiæ 3-"Amicus curiæ" defined. "Amicus curiæ" is one who, as stander-by, when a judge is in doubt or mistaken in matter of law, may inform court on case then before it, but he is not party to suit, and has no control over it, and he cannot file pleadings or motions of any kind nor reserve exceptions to any ruling of court nor prosecute appeal.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Amicus Curiæ.]

2. Amicus curiæ -No party has cause of complaint, if court grants stranger privilege of being heard.

No party to action has cause of complaint, if court grants stranger privilege of being heard as amicus curiæ, since no action of stranger can affect legal rights of party, and it was therefore

not reversible error to overrule motion to strike out petition of guardian for leave to appear as amicus curiæ or in permitting him to be heard respecting vacation of ex parte order of adop

tion.

3. Adoption 7-Guardian of child cannot be party to adoption proceeding or be given any right to appear and object thereto.

Guardian of child cannot be party to adoption proceeding or be given any right to appear and object thereto.

4. Adoption 14-Order of adoption and power of court over it are governed by same rules of law as other judgments and decrees.

Adoption proceedings are judicial in character, and order therein and power of court over it are governed by same rules of law as are all other judgments and decrees.

5. Judgment 342 (2) Filing of application after judgment for leave to be heard as friend of court does not give court any power over judgment at subsequent term.

Filing of application after judgment by stranger to record, asking leave to be heard as friend of court, did not keep cause in court so as to give it any power over judgment at subsequent term.

6. Adoption 16-Court cannot vacate its decree of adoption after expiration of term.

Court has power to vacate its decree of adoption during term at which it was rendered but not thereafter, and, if during term court thought there was probability that it erred, it should have vacated order before end of term and continued matter, if need be, to next term. 7. Adoption 16-Guardian's application to appear as amicus curiæ held not to give court power to vacate order of adoption after close of term.

Application by guardian of child to appear as amicus curiæ for purpose of vacating ex parte order of adoption, rendered during term, did not give court power to vacate order after close of term.

8. Adoption 1-Right of adoption unknown at common law.

Right of adoption, conferred by Laws 1855, c. 56, was unknown at common law.

9. Adoption 1-Petition for adoption held sufficient.

Allegation of petition for adoption that child was in care and custody of its guardian then residing in county where petition was filed held sufficient in form to give court jurisdiction of adoption proceedings, under Laws 1855, c. 56, § 1 (Burns' Ann. St. 1914, § 868).

10. Evidence 10(2)-Court judicially knows that Zionsville is in Boone county.

Court judicially knows that Zionsville is in
Boone county.

11. Adoption 15-Presumed that evidence
of child's
justified finding that residence
guardian was residence of child.

It is presumed that petitioner for adoption introduced sufficient evidence at hearing to justify court in finding that residence of child's

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

guardian, who lived in same county as petition- | William E. Myers as guardian at his home in er, was residence of child.

12. Adoption 14-Order giving care and custody of child to guardian is controlling as between adopting parent and guardian.

Order giving care and custody of child to guardian is controlling as between adopting parent and guardian.

13. Guardian and ward 29-Whether guardian or adopting parent shall have custody of child determined by best interests of child.

Court, in determining whether guardian or adopting parent shall have custody of child, will be guided by best interests and welfare of child.

14. Domicile 5-Child's residence follows that of guardian having legal custody.

Where custody of child is legally transferred to guardian, residence of child follows that of guardian.

15. Guardian and ward 29-Neither adopt. ing parent nor guardian has absolute right to custody of child.

Neither adopting parent nor guardian has absolute right to custody of child, but it is proper for court to decide if either shall have custody.

Nichols, J., dissenting in part.

Zionsville; that the adopted father of said child lived in Grant county, Ind., and had given his written consent that the said child be adopted by the petitioner. The verified consent of Earl C. Perry to said adoption by the petitioner was also filed with the clerk.

The court on said March 1, 1924, entered an order of adoption in accordance with the petition, and ordered that the petitioner from that time have the care and custody of said child. Two weeks later, and within the term at which the order of adoption was made and entered, William E. Myers filed a verified application asking leave to appear as amicus curiæ, for the purpose of presenting to the court certain facts about which he believed the court should be more fully informed, and which he believed would lead the court to vacate the order of adoption. In his application Mr. Myers stated he was an uncle of said child and its duly appointed guardian acting under appointment of the probate court of Marion county; that she had been an inmate in his home for three years, during which time he had cared for and schooled her at his own expense; that he was able financially and morally fit to

Appeal from Circuit Court, Boone County; have her care and custody; that there was Frank E. Hutchinson, Judge.

In the matter of the adoption of Mary Elizabeth Perry by May H. Suter. From a judgment vacating and setting aside an order of adoption and dismissing her petition, petitioner appeals. Reversed, with direc tions.

an agreement between him and the relatives of said child that, if at any time there should by any action to change her residence or control, he should be notified, and that no such change should be had without his consent; that he had no notice or knowledge of said adoption proceeding until said petitioner appeared at his home with the order of adoption and demanded the immediate possession of such child; that the petitioner had no permanent home other than a

Bell, Kirkpatrick, McClure & Elliott, of Kokomo, and Roy W. Adney, of Lebanon, for appellant. Frank S. Roby and R. P. Bundy, both of boarding house; that she did not intend to Zionsville, for appellee.

McMAHAN, J. On March 1, 1924, May H. Suter, hereafter designated as petitioner, filed her petition in the Boone circuit court for the adoption of Mary Elizabeth Perry. The petition stated that the petitioner was a school teacher, residing in Howard county, Ind.; that Mary Elizabeth Perry was a female child, eight years of age, the child of Ruth E. Perry and Samuel P. Weller, and born in lawful wedlock; that her father died in 1916; that his widow, the mother of said child, later married Earl C. Perry; that thereafter said Mary E. Perry was adopted by said Ruth E. Perry and her husband, Earl C. Perry, and her name changed to Mary Elizabeth Perry by the county court of Cook county, Ill.; that Ruth E. Perry, the mother, died in 1922; that thereafter William E. Myers of Zionsville, Ind., was appointed guardian of said child; that said child was in the care and custody of said

keep said child permanently and make a home for her, but that it had been and was her intention to place such child in a home in Chicago, Ill., among strangers to the court, and about whom the court knew nothing; that the adoptive father, Earl C. Perry, was a bona fide resident of Grant county, Ind.; that the consent of said adoption was procured from said Earl C. Perry by purchase and payment of money, and that, had the facts, including the want of jurisdiction of said minor, been called to the attention of the court, and the facts concerning the best interest of said child been given the court, said adoption would not have been granted.

On order of court notice was given the petitioner, May H. Suter, of the filing of such application by Mr. Myers, and that the court would hear such application April 7, 1924; that being the first day of the next regular term of the court. On April 7 May H. Suter appeared and filed a motion to strike the application of Mr. Myers from file. On April

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(148 N.E.)

over order of adoption at the term following the one at which it was made, for the reason that the adoption proceeding was no longer before the court.

19 this motion was overruled, and Mr. Myers | sists that the court had no power or control was then for the first time given leave to appear as amicus curiæ, and, the petitioner refusing to introduce any further evidence, the court, after considering the facts alleged in the application of Mr. Myers, and on a reconsideration of the evidence theretofore introduced, found the facts set forth in the application of Mr. Myers to be true, and the order of adoption entered at the preceding term of court was vacated, the custody of the child restored to the guardian, and the petition for adoption dismissed.

From the action of the court in vacating and setting aside the order of adoption and dismissing her petition May H. Suter appeals, and insists: (1) That the court erred in overruling her motion to strike out the application of Mr. Myers to be allowed to appear as amicus curiæ and in allowing him to appear as such; and (2) that the court erred in setting aside the order of adoption, and in dismissing her petition.

Mr. Myers was not a party to the adoption proceeding. He could not become a party thereto or be given any right to appear and object to the adoption. He was a stranger to the record. Leonard v. Honisfager, 43 Ind. App. 607, 88 N. E. 91. The filing of the application after judgment, by a stranger to the record, asking leave to be heard as a mere friend of the court, did not keep the cause in court so as to give the court any power over the judgment at a subsequent term. Proceedings for adoption are judicial in character, and an order of adoption is no more sacred than is the decree in any other proceeding in court. Such an order and the power of the court over it are governed by the same rules of law as are all other judgments and decrees.

[6] The court without doubt had the power and authority to vacate and set aside the decree of adoption at the term when it was made, and, if after the filing of the application by Mr. Myers for leave to appear as a friend of the court, the trial judge thought there was a probability that he had erred in the matter, he should have acted before the end of the term and have vacated and set aside the order of adoption and continued the matter, if need be, until the next term of court. It would be a dangerous and farreaching precedent if we were to hold that the mere filing of an application after judg ment by a stranger to an action, asking leave to appear as a friend of the court, was sufficient to give the court authority to vacate

[1, 2] In discussing the questions involved it will be well to keep in mind that an amicus curiæ is one who, as a stander-by, when a judge is in doubt or mistaken in a matter of law, may inform the court. He is heard only by leave, and for the assistance of the court, upon a case then before it. He is not a party to the suit, and has no control over it. Birmingham Loan & Auction Co. v. First National Bank, 100 Ala. 249, 13 So. 945, 46 Am. St. Rep. 45. Courts undoubtedly have the right to allow an attorney, or other person, to appear as a friend of the court in a case, to act as an adviser of the court, and to make suggestions as to matters appearing upon the record, or in matters of practice. An amicus curiæ has no rights in the matter. He can file no plead-the judgment at a subsequent term. For a ings or motions of any kind. He can reserve no exception to any ruling of the court, and of course cannot prosecute an appeal. It has been held in this state that an amicus curiæ may, on leave, file briefs, argue the case, and introduce evidence. Parker v. State, 133 Ind. 178, 32 N. E. 836, 33 N. E. 119, 18 L. R. A. 567; Irwin v. Armuth, 129 Ind. 340, 28 N. E. 702. See, also, Hamlin v. Meeting House, 103 Me. 343, 69 A. 315. But, since the amicus curiæ can do nothing other than advise the court, no party to the action has any cause to complain if the court grants a stranger the privilege of being heard, since no action of such party can affect the legal rights of a party to the action. This being true, there was no reversible error in the action of the court in overruling the motion to strike out the petition of Mr. Myers for leave to appear as amicus curiæ, or in permitting him to be heard.

[3-5] In support of the second contention appellant, conceding that courts have control over their judgments and decrees during the term at which they are rendered, in

discussion of the power of the court to change a final judgment see McClellan v. Binkley, 78 Ind. 502; Cario, etc., R. Co. v. Holbrook, 72 Ill. 419; Simmons v. Dowd, 77 N. C. 155; Cook v. Moore, 100 N. C. 294, 6 S. E. 795, 6 Am. St. Rep. 587; Ward v. Lee, 1 Bibb (4 Ky.) 18; Etna Life Ins. Co. v. McCormick, 20 Wis. 279; Bank of United States v. Moss, 47 U. S. (6 How.) 31, 12 L. Ed. 331.

The

It was one of the earliest doctrines of the common law that the record of a judgment might be changed at any time during the term at which it was rendered. Boone circuit court had that power. It had the power to change, amend, or vacate the order of adoption at any time during the term in which it was made. Its power, however, terminated with the close of the term, unless the proceeding for adoption was kept alive by reason of Mr. Myers having filed a petition for leave to appear as a friend of the court.

[7] It has been held that a motion for leave to file a motion for a new trial does not keep a cause in court after the close of

the term at which the judgment was render-, that the child was then "in the care and ed. Odell v. Sargent, 3 Kan. 80. And we hold the application of Mr. Myers for leave to appear as amicus curiæ did not give the court power to vacate the order of adoption after the close of the term. Such an application cannot be compared to a motion for a new trial or a motion to modify a judgment, and cases holding that such motion keeps the action in fieri are not in point.

(148 N.E.)

right of the adopted child as heir of Mr. | probate court of Marion county did not have Myers was involved, would any one, with any knowledge of law, register a protest or dissent, if we were to hold the action of the court in vacating the decree of adoption void and that the adopted child was entitled to share in the distribution of the estate? We think not.

jurisdiction to appoint a guardian for the child, and we will therefore assume that the adopted father and the child resided in Marion county at that time, and that that court not only had jurisdiction to appoint a guardian, but that it also had jurisdiction to and did give the custody of the child to the guardian. If the custody of the child was by the court legally transferred from the adopting father to the guardian, the residence of the guardian became the residence of the child, and, when the guardian became a resident of Boone county, the child also became a resident of that county. Townsend v. Kendall, 4 Minn. 412 (Gil. 315) 77 Am. Dec. 534; Wilkins' Guardian, 146 Pa. 585, 23 A. 325.

[12, 13] The record in this case discloses that a court of competent jurisdiction appointed a guardian for the child in question, and, as we understand the record, gave the custody and care of the child to the guardian. And, in so far as the courts of this state are concerned, we apprehend that as between the former adopting parent, Mr. Perry, and the guardian the order of the court giving the care and custody of the child to guardian is controlling. The fact [15] In holding as we do that the order of that the action of the court in vacating and adoption is valid, and that the court had no setting aside of the order of adoption be jurisdiction to set it aside at the subsequent held void, and the decree of adoption there- term of court, we are not to be understood tofore made be held valid, does not necessa- as holding that the provision concerning the rily mean the care and custody of the child care and custody of the child is binding on must be taken away from the present guard- the guardian, or that it gave appellant any ian. As between Mr. Perry and appellant, right she would have had if that provision the latter would be entitled to the care and had not been inserted in the order of adopcustody of the child. But as between appel- tion. Neither the appellant nor Mr. Myers lant and the guardian it seems to us that the has an absolute right to the custody of the order of the Boone circuit court in so far as child. It is a matter for the proper court it attempts to take the care and custody of to decide if either shall have that custody. the child away from the guardian is not such The judgment of the court vacating and setan order as would be binding in a proceed- | ting aside the order of adoption and dismissing by way of a habeas corpus for the cus-ing appellant's petition for adoption is retody of the child. If Mr. Myers should re- versed, with directions to reinstate the order fuse to give the custody of the child, it may of adoption. be necessary for her to file her petition with the court which appointed the guardian and have that court modify the order giving the care and custody of the child to the guardian; or probably she may proceed in the circuit court of the county in which the child is detained without first making application to the probate court. These questions, how-ord that both the appellant and the guardian ever, are not now before us, and we express no opinion on them. The court, having jurisdiction of such proceeding in determining whether the guardian or the adopting parent should have the custody of the child, would be guided by that which would be for the best interest and welfare of the child. See McDonald v. Short, 190 Ind. 338, 343, 130 N. E. 536.

The allegation in the petition for adoption that the child was in the care and custody of Mr. Myers, "as her guardian," and that he resided in Boone county, was sufficient to give the court jurisdiction of the child.

[14] We are not advised as to where the adopted father of the child resided at the time the guardian was appointed. The petition for adoption alleges that he "lived" in Grant county, and the application of Mr. Myers stated that he "moved" to Grant county about 1923. There is no claim that the

NICHOLS, J. (dissenting). I concur in so much of the opinion of the majority in this case as seems to hold that the custody of the little girl involved is with the guardian, regardless of the proceedings for her adoption by appellant, but it appears by the rec

have misapprehended their rights and the rights of the little girl in this regard, and such rights should be made plain to them.

As at the time of the appointment of the guardian her father and mother had died and her adoptive father had no more interest in her welfare than to be willing thereafter to surrender his relation as such adoptive father for compensation, and as it appears by the record that the little girl had lived in the home of the guardian since his appointment as such, I assume that, when he was appointed as such guardian, such appointment was of both the person and the estate of his ward.

Section 3065, Burns' Ann. St. 1914, in force since May 6, 1853, expressly provides that—

"Every guardian so appointed shall have the custody and tuition of such minor, and the management of such minor's estate during minority, unless sooner removed or discharged from such trust: Provided, That the father of such minor (or if there be no father, the mother, if suit