Gartrell, et al. v. Gartrell
| Docket Number: | 2005-IA-00747-SCT | |
| Supreme Court: | Opinion Link Opinion Date: 08-24-2006 Opinion Author: Cobb, P.J. Holding: This interlocutory appeal is dismissed as moot. The order which initially denied the motion to dismiss, at the time we granted interlocutory appeal, is vacated. |
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| Additional Case Information: |
Topic: Petition for Commission - Moot appeal Judge(s) Concurring: Smith, C.J., Waller, P.J., Diaz, Easley, Carlson, Graves, Dickinson and Randolph, JJ. Nature of the Case: Interlocutory Appeal |
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| Trial Court: |
Date of Trial Judgment: 04-05-2005 Appealed from: DeSoto County Chancery Court Judge: Mitchell M. Lundy, Jr. Case Number: 03-01-0164 |
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| Note: | Mitchell Lundy, Jr.; Disposition: Motion to strike item two of the appellee's record excerpts is dismissed as moot. | |
| Party Name: | Attorney Name: | |||
| Appellant: | Diane M. Gartrell, Lisa LeAnn (Gartrell) Johnsey, and Jodey Jon Gartrell |
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| Appellee: | M. Kay Gartrell (a/k/a Kay Gartrell Kirschner) |
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| Topic: | Petition for Commission - Moot appeal |
| Summary of the Facts: | M. Kay Gartrell filed a Petition for Commission in an heirship action, requesting the chancellor to issue a subpoena to George Joseph Weiss, a resident of the state of Arizona, for a deposition to determine whether Weiss consented to the adoption of his natural children, Lisa and Jodey, in 1984. The chancellor granted the commission, stating the Arizona court clerk shall issue a subpoena to Weiss, compelling him to appear at the law office of a Phoenix, Arizona, attorney on March 31, 2005. Lisa and Jodey were adopted in DeSoto County by their stepfather William Gartrell, III, the husband of their natural mother, Diane M. Gartrell, on November 15, 1984. At the time of the adoption proceedings, Diane attempted to notify Weiss at an address in Michigan, and by publication in DeSoto County, but despite her efforts to notify him, Weiss was not present at the adoption proceedings. Diane Gartrell, in her capacity as executrix of the estate of William Gartrell, and the adopted children filed a Motion to Quash the subpoena on March 16, and attached an Affidavit from Weiss, dated March 22, 2005, in which he stated that he was aware of and consented to the adoption. The Supreme Court granted an interlocutory appeal on the chancellor’s grant of the commission. Subsequently, Kay filed an affidavit and notice of waiver of the commission and withdrawal of the subpoena to take Weiss’s deposition in the trial court as well as a motion to dismiss this appeal as moot. |
| Summary of Opinion Analysis: | In filing her affidavit and notice of waiver, Kay has renounced the right granted to her by the chancellor. In doing so, the right that once existed has ceased to exist. Therefore, this appeal is moot. |
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