Appeal from the Circuit Court of Madison County; the Hon.
HAROLD R. CLARK, Judge, presiding. Decree affirmed.
Petitioners, Joseph Mateyka and Norma Mateyka, filed a petition in the Circuit Court of Madison County on October 17, 1961, for the adoption of Gregory Smith, who was born on August 27, 1961. The defendant filed a consent for adoption and an entry of appearance to the petition.
On July 11, 1962, the defendant filed a motion for leave to withdraw her consent and entry of appearance to the petition for adoption. The court on September 5, 1962, entered an order continuing the hearing on the motion to withdraw the consent and entry of appearance and granted defendant leave to file an answer and affirmative defenses to the petition. Defendant on September 19, 1962, filed an answer and affirmative defenses by which she neither admitted or denied the material allegations in the petition and alleged that the consent for adoption filed by her was invalid because the import thereof was not understood by her at the time of the execution, and that the court at the time of the execution of the consent had not authorized any person to acknowledge it.
The case was heard by the court on October 9, 1962, and following the hearing a judgment order was entered finding that the purported consent to adoption was not valid and the petition for adoption should be dismissed and directing petitioners to restore the child to the custody of the defendant.
Petitioners on October 15, 1962, filed a motion to vacate the aforesaid order or in the alternative to grant them a new trial, and on November 9, 1962, the court affirmed the judgment order entered on October 9, 1962, and granted petitioners leave to file an amended petition. Petitioners on November 16, 1962, filed their amended petition for adoption alleging, among other things, that defendant on or about September 2, 1961, abandoned and deserted the child and had not given him any maternal care and attention since that date and that she was a wholly unfit person to have the care and custody of said child. Defendant on November 20, 1962, filed a motion to dismiss the amended petition which was overruled and defendant thereafter answered the amended petition and denied that she had abandoned the child and was unfit to have the custody of the child.
The court heard evidence on the issues made by the amended petition and answer thereto on March 4, 1963, and following the hearing the court on March 6, entered a decree finding that the defendant on or about September 2, 1961, abandoned said minor child, Gregory Smith, to the petitioners and they have had such child in their exclusive care and custody from that date hence; that said defendant, Joyce Smith, is an unfit person to have the care and custody of said child and that it is for the best interest of the child, Gregory Smith, that he be adopted by the petitioners. From this decree, defendant appeals.
It is the theory of the defendant that the original judgment herein entered on October 9, 1962, is final; that petitioners should not have been permitted to file an amended petition; that petitioners were not and are not entitled to file a new petition; because the original judgment entered on October 9, 1962, is res judicata, and was a final determination on the merits in favor of the defendant. In the alternative, defendant argues that the issue of abandonment was resolved by the original judgment herein, and that the findings in the decree for adoption entered on March 6, 1963, that defendant was unfit to have the care and custody of her child and that it would be for the best interest of the child to allow the adoption are against the manifest weight of the evidence.
The general rule is that, on the principle of res judicata, a judgment rendered by a court having jurisdiction of the parties and subject matter is conclusive and indisputable evidence as to all facts or questions in issue in the action and actually determined therein, when the same facts or questions are again put in issue between the same parties or their privies. 23 ILP, Judgments, Sec 377. What has been adjudicated is to be determined from a consideration of the judgment actually entered in reference to the issues presented for decision. Adams v. Pearson, 411 Ill. 431, 104 N.E.2d 267; Champion v. Champion, 20 Ill. App.2d 271, 156 N.E.2d 16. The court looks to the proceedings in the earlier hearing to ascertain what the issues were and how they were resolved. 23 ILP, Sec 382; Katz v. Berkos, 316 Ill. App. 569, 45 N.E.2d 566.
The original petition for adoption filed herein, alleges among other things, that the name of the father of said child is James Lee Smith; that the name of the mother of said child is Joyce Smith; that the mother, Joyce Smith, consents to the adoption and that the father, James Lee Smith, is unfit to have the child because he has abandoned and deserted said child. There was no allegation in the original petition that the child had been abandoned by its mother, Joyce Smith, or that Joyce Smith was an unfit person to have the custody of her child, and the judgment of October 9, 1962, contained no finding concerning abandonment by or the unfitness of Joyce Smith to have the custody of her child, but passed only on the question of the validity of the consent.
The original order stated, "Now on this 9th day of October, A.D. 1962 this action comes on to be heard before the Court; after hearing the sworn testimony and being fully advised in the premises the court finds that the purported consent to adoption executed by the respondent, Joyce Smith, herein, is not valid and that the acknowledgment thereof should not be validated by the Court." . . . This order was not final on any question other than the validity of the purported consent. The original order entered on October 9, 1962, held only that the purported consent executed by the defendant, Joyce Smith, was invalid and this judgment was not res judicata on the issue of abandonment of the child by Joyce Smith or the unfitness of Joyce Smith to have said child.
We do not believe that the trial court erred in granting the petitioners leave to file an amended petition after entering the order of October 9, 1962, holding that the purported consent was invalid. The provisions of the Civil Practice Act and the rules adopted pursuant thereto, apply to all adoption proceedings except as otherwise specifically provided in the Adoption Act. (Ill. Rev Stats 1961, c 4, § 9.1-20.)
Sec 46(1) of the Civil Practice Act (Ill. Rev Stats, 1961, c 110), is as follows:
"(1) At any time before final judgment amendments may be allowed on just and reasonable terms, . . . changing the cause of action or defense or adding new causes of action or defenses, and in any matter, either of form or substance, in any process, pleading, bill of particulars or proceedings, which may enable the plaintiff to sustain the claim for which it was intended to be brought or the defendant to make a defense." . . .
Leave to file the amended complaint herein was granted and the amended complaint was filed prior to any final judgment on the merits of the case. Granting or denying leave to amend pleadings is a matter within the discretion of the trial judge and except where there is a clear and manifest abuse of that discretion, the decision of the trial judge ...