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Lawskills.com Georgia Caselaw
POWELL v. POWELL et al.
37734.
Adoption. Clinch Superior Court. Before Judge Huxford. February 7, 1959.
TOWNSEND, Judge.
1. An interlocutory order of adoption granting custody of a minor child to the adopting parents is a final order as to the custody of such child until it is set aside, or until it is superseded by a final order in the adoption proceedings. Accordingly, the denial of a motion to revoke such interlocutory order is a final judgment from which a bill of exceptions will lie.
2. The method by which an interlocutory order of adoption may be revoked is set out in Code (Ann.) 74-415. Noncompliance with the provisions regarding notice to the adverse parties contained therein, which provisions are mandatory, and were not waived by the parent consenting to the adoption, renders a petition to revoke such order fatally defective. The trial court did not err in denying the motion for the reason that no notice had been given as required by statute.
James J. Powell, Sr., and Mary Louise Powell, paternal grandparents of the minor children Deborah and Ronald Powell, filed a petition for adoption in the Superior Court of Clinch County to which the consent of the father appeared. It was alleged that the mother, Marion Florie Powell, had abandoned the children and that her present whereabouts was unknown. On August 22, 1958, an interlocutory order of adoption was entered up, after service by publication. On January 19, 1959, the natural mother filed a motion praying only to revoke the interlocutory order of adoption on the grounds that she had not been personally served as required by law, had no notice of the proceedings until Christmas, 1958, and had not abandoned her children. The court, on February 7, 1959, entered the following order: "After hearing of evidence, argument of counsel, the consideration of the report of the Welfare Department, the prayers of the petition are denied, and the court upon its own motion dismisses the petition because it appears that no written notice has been served on the father of said minors as provided by Code 74-415." To the order the plaintiff in error excepted.
1. There is a motion to dismiss the bill of exceptions on the ground that the exception is to an interlocutory decision not final in its nature; that there is no assignment of error on a final judgment, and that if the judgment were reversed it would work no benefit to the plaintiff in error. Although, under Code (Ann.) 74-414, the court may pass an order on the issue of final adoption at any time after the expiration of six months from the date of the interlocutory order, and although the six-month period has passed, the court also may, under Code (Ann.) 74-415, revoke its interlocutory order for cause at any time until the final order of adoption is entered up. Since the interlocutory order is final in its nature as to custody of the children until it is revoked or until the final adoption is passed upon, it cannot be held, any more than an order on temporary alimony or a temporary injunction, to lack that finality which is the requisite of an appealable judgment. The motion to dismiss the bill of exceptions is denied.
2. Code (Ann.) 74-415 relating to revocation of an interlocutory order of adoption states in part: "But no such revocation shall be entered unless 10 days notice shall have been given in writing to the parent or parents of the child, if known, and to the petitioner or petitioners (unless he or they make the motion)." The consenting parent, James J. Powell, who appears from the evidence in this case to live in another county from that of the adopting grandparents, received no notice of the petition to revoke, and did not by appearance or otherwise waive such notice. The court accordingly did not err in dismissing the petition to revoke the interlocutory order on the ground that the statutory requirements of such motion had not been met. The prayers of the motion related only to revoking the interlocutory order and not to the adoption proceedings as a whole.
Judgment affirmed. Gardner, P. J., and Carlisle, J., concur.
C. Bradford, contra.
Parker & McGee, for plaintiffs in error.
DECIDED JUNE 16, 1959 -- REHEARING DENIED JUNE 25, 1959.
Saturday May 23 00:52 EDT


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