23 Haw. 241 | Haw. | 1916
OPINION OF THE COURT BY
This is an appeal from a judgment of a judge of the first circuit court dismissing a writ of habeas corpus previously-issued by him upon the petition of one Maka Wikoli. The respondent is one Ah Ping, and the proceeding involves the right to the custody of a boy six or seven years of age named Ah Fan (alias Ah Fon) of whom the petitioner is the maternal grandmother and the respondent a cousin.
The material facts shown by the record are as follows: On June 17, 1913, one C. Ah Chew, the father of the child in question, the mother having previously died, executed at Lahaina, Maui, an instrument claimed to be, and held by the circuit judge to be, an agreement of adoption giving the child to said Ah Ping; the instrument was signed and acknowledged by Ah Chew and Ah Ping, but was not recorded until the 5th day of August, 1915; Ah Ping, a resident of Kipahulu, Maui, had gone to Lahaina at Ah Chew’s
Counsel for the appellant contends that the agreement of adoption is of no validity as against the appellant because it was not recorded until after her appointment as guardian; under ■ section 3119 of the Revised Laws which provides that “All * * * agreements of adoption shall be recorded in the office of the registrar of conveyances in default of which no such instrument shall be binding to the detriment of' third parties and conclusive upon their rights and interests.”
The circuit judge held, and counsel for the respondent claim, that as no property rights are involved the petitioner is not a “third party” within the meaning of the statute. It is also argued that the respondent, by virtue of the adoption, stands in the shoes of the child’s father (R. L. 1915, Sec. 2994) and that under section' 3018 of the Revised Laws, as between the father and the guardian of an infant, the former is “entitled ■ to • the custody of the person of the minor, and to the care of his education.”
The circuit judge having held that the agreement of adoption was effective against the petitioner, and that the respondent should be regarded as the father of the child, expressed the view that the appointment of the guardian was invalid in the absence of notice to him of the proceeding, citing Woerner, Am. Law of Guardianship, 95, and other authorities. But, as under our view, the agreement of adoption did not have that effect, the respondent was not in the position of a father at the time of the proceeding for the appointment of a guardian, and, hence, was not entitled to notice. “In the absence of any statutory requirement notice is not required to be served on any person.” 21 Cyc. 39, and cases there cited. Our statute (R. L. 1915, Chap. 173) contains no requirement as to notice to parents, but as by virtue of Section 2993 of the Revised Laws, the father is the natural guardian of the persons and property of his minor children, and as by section 3018 the father, or, if he be dead, the mother while unmarried, is entitled to the custody of the children, presumably he or she would be entitled to notice of a proceeding for the appointment of some one else as guardian over a child of theirs. That is a matter not involved here.
We have assumed that the agreement of adoption in this case is in proper form. There may, perhaps, be room for a contention that it was nothing more than an agreement to adopt the child, the language being, “that the said party of the second part shall adopt the said child,” etc., but as no point as to this has been made by the appellant we express no opinion upon it.
The judgment appealed from is set aside and the case is remanded to the circuit judge with direction to enter judgment awarding the custody of the child to the petitioner.