Adams v. Adams

59 So. 84 | Miss. | 1912

Whitfield, C.

The case of Beaver v. Crump, 76 Miss. 57, 23 South. 432, is not at all in point in this case. That was an attempt to enforce specific performance of an agreément to devise all that had not been devised, without any specification of what was to be devised. The court held that there could be no specific performance of an agreement so utterly vague and indefinite as to what was to be devised. The decree in this case simply creates, and clearly and definitely creates, the relationship of heir on the part of the adopted daughter.

The only question in this cause which has given us trouble, and that has given us considerable trouble, is the point made that the court was without jurisdiction to hear the cause and render the decree, because the petition and proceedings under section 1496 of the Code of 1880 did not contain certain averments set out therein. It is said that there is nothing to show, first, that the petition was presented to the circuit court of the county in'which the adopting father of the infant resided; and, second, that there was nothing to show the name of the father of the infant, or its guardian, or whether they were living or dead, or whether the consent of the father if living, or of the guardian, if living, had been obtained: In this case it does appear that the mother of the infant joined in the petition with the adopting father, and that she had the custody of the infant. There are decisions to the effect that, where the parent having custody of the child joins in such petition, that is sufficient.

The. court had general jurisdiction of the subject-matter and of the parties before it, and on collateral attack it will be presumed that the petition was presented to the circuit court of the proper county.

.As to the want of the other averments, we think the true rule is stated by Mr. Freeman in his able note to Van Matre v. Sankey (Ill.), 39 Am. St. Rep. 215, et seq. He says:

“The validity of adoptions, when questioned in collateral proceedings, depends very much upon the views of the court before which the question is presented respecting the character of the' proceeding and of the statutes by which it is authorized. Of course, if the proceedings were conducted in strict compliance with the statute, and this appears to the court by such evidence as it deems competent and satisfactory, there can be no question except as to the constitutionality of the statute, .and no statute authorizing adoptions has, up to the present time been held unconstitutional in any respect. But more frequently than otherwise there has been some omission or irregularity in the proceedings, or, at least, the existence of a strict, or even a substantial, compliance with the statute does not appear from the written- evidence of the adoption proceedings themselves, and then these questions arise: (1) Can the proceedings be supported by extrinsic evidence? and (2) Does the omission, or irregularity, supposing it still to appear notwithstanding such evidence, render the proceedings void? There have, undoubtedly, in connection with the question of adoption, been some absurd judicial utterances, by way of application of the absurd rule that statutes in derogation of the common law should be strictly construed, and this notwithstanding the fact that the Code, of which the adoption law under consideration was a part, expressly declared that the rule of the common law, that statutes in derogation thereof are to be strictly construed, has no application to this Code,’ and that the provisions of such Code were to be' liberally construed, with a view to effect its objects and to promote justice.’ Civ. Code Cal. sec. 4.

“As to the notion that the existence of all acts necessary to sustain an adoption should appear by the record, nothing can be more absurd. In the first place, when a court has attained the dignity of a court of record, its jurisdiction and the rightfulness of its action are presumed, and, when it has not attained such dignity, it has no record by which it can speak; and, in the second place, the rule respecting judicial officers, and courts of limited jurisdiction and authority, is that, except when required to make and preserve some written evidence of their jurisdiction, it may he established by extrinsic evidence, whether oral or written. Jolley v. Foltz, 34 Cal. 321; Reclamation District v. Goldman, 65 Cal. 638, 4 Pac. 676; Williams v, Cammack, 27 Miss. 209, 61 Am. Dec. 515; Barnard v. Barnard, 119 Ill. 98, 8 N. E. 320; Van Deusen v. Sweet, 51 N. Y. 378. Hence, in the most recent decision upon the subject, the case of Ex parte Clark, 87 Cal. 641, 25 Pac. 967, hereinbefore cited, has been explained and modified, and the rule announced that, to sustain an adoption, oral evidence may properly be received of supporting facts not disclosed from the record or writings evidencing the adoption. Estate of Williams, 102 Cal. 70, 36 Pac. 407, 41 Am. St. Rep. 163.

“If there are any statutes in favor of which liberal presumptions and- intendments should be indulged to support proceedings taken in good faith thereunder, the statutes authorizing the adoption of minors should be included among them.”

There is nothing in section 1496 of the Code of 1880 providing that these averments must appear affirmatively in the record in order that jurisdiction may exist. This, it must be remembered, is a collateral attack on these proceedings, and the proceeding, for the adoption of the child was a strictly judicial one. It might have been better practice, as held in Barnard v. Barnard, 119 Ill. 92, 8 N. E. 320, to set out all the averments named in section 1496 as-proper to be set out. But the mere statement in the statute that these averments should be made, without saying they should be jurisdictional, certainly does not result in destroying the jurisdiction of the court. The case which we have found most directly in point is the case just referred to of Barnard v. Barnard, supra, and we adopt what is said in that case, and the. comment of Mr. Freeman thereon, as correctly stating the rule as to jurisdiction in this class of cases:

“If the proceeding for the adoption is judicial, and the officer or tribunal is acting as a court or judge, then, upon principle, the order of adoption partakes of the characteristics of a judgment; and if there is jurisdiction over the parties and the subject-matter, it cannot be .avoided for errors or irregularities, except upon appeal or by motion to vacate it, and is therefore exempt from collateral attack. Thus, where it was claimed that an order of adoption was a nullity, because it was not shown that the county in which the petition was presented was the residence of the petitioner, nor thaJ the father of the child was dead, nor, if living, that hi consented to the adoption, the court said: ‘It is not important here to inquire — this record coming before this court collaterally — whether the county court erred, simply, in decreeing as it did. The question is: Did it have jurisdiction to make any decree in the matter? If it had jurisdiction to decree in the case, the decree, until reversed, however erroneous merely, must stand. It will be observed that the statute clearly gives the court the power to decree as to the subject-matter, and the only question, therefore, is whether the parties required by the statute to be before the court in order that such a decree be rendered were in fact before the court. The presumption in the first instance is that the court had jurisdiction, unless it is aparent from the act itself that the court could not have had jurisdiction in any contingency, or unless the statute empowering the court to act requires the act to affirmatively show, precedent to its decree, some fact which it fails to show. There being no pretense of anything here showing affirmatively that "Walter Barnard did not at the time of presenting the petition reside in McLean county, or that the complainant had a father alive who had not abandoned him at the time, it only remains to examine whether the petition affirmatively recites all the jurisdictional facts which the statute species shall be recited in it, for we have held no more need be recited.’ Barnard v. Barnard, 119 Ill. 92, 98, 8 N. E. 320, 322.”

Per Curiam;.

The above opinion is adopted as the opinion of the court, and for the reasons therein indicated the judgment is affirmed. Affirmed.

Suggestion of error filed and overruled.