| Wis. | Nov 1, 1898
This case turns on whether the county court obtained jurisdiction to make the order of adoption. It is challenged solely upon the ground that the consent of the living parent, the father, was not given, and there was no adjudication, on notice to the absent parent, of the fact of abandonment, nor any consent given in place of that of
The statute to be considered is sec. 4022, E. S. 1878, which-reads as follows: “ No such adoption shall be made without the written consent of the living parents of such child, unless the court shall find that one of the parents has abandoned the child, or gone to parts unknown.” Thus it will be seen that, upon the fact being established that the living parent has abandoned his child, he is deemed by the statute to have thereby relinquished all parental right to be consulted in respect to'the child’s welfare, and his consent to-the adoption is therefore dispensed with. The term “ abandon ” obviously means no more than neglect or refusal to-perform the natural and legal obligations of care and support which parents owe to their children. The fact of abandonment, judicially determined, was essential to the jurisdiction; not essential that it should be determined on proper evidence, necessarily, or in accordance with the truth, because mere error in that regard does not affect jurisdiction. If jurisdiction be obtained to determine a fact, its determination wrong or on insufficient or improper evidence is immaterial on the question of legal right to proceed judicially to the next step. That is deemed to be elementary. Now, that-
It follows that the only remaining question on this branch •of the case is, Did the court have jurisdiction to act on the subject of the alleged abandonment, in the absence of notice, actual or constructive,'to the parent? That must be answered in the affirmative. When the proceedings in question were had the statute did not require notice, actual or constructive, to a parent who had abandoned his child. That was unquestionably the legislative idea. Resort to rules of liberal construction is not necessary to* reach that conclusion. But if the statute would admit of two con.structions, the result- would be the same. We would feel bound to repudiate the doctrine of strict construction contended for vigorously by appellant. The adoption statute is a humane provision which looks to the interests of children primarily. That is its controlling idea and policy. Therefore, every reasonable intendment should be indulged in, in case of doubt, in the line of promoting that object. Other courts have taken the same view, but, if it were otherwise, our duty to carry out an obvious legislative intent would be the same. That the statute was designed to en
The conclusion reached as to the necessity of notice to the absent and abandoning parent, is but affirming what was clearly held, inferentially, in Schlitz v. Roenitz, 86 Wis. 31" court="Wis." date_filed="1893-09-26" href="https://app.midpage.ai/document/schiltz-v-roenitz-8184338?utm_source=webapp" opinion_id="8184338">86 Wis. 31. The court there, while holding that the order was not conclusive upon the father on the fact of abandonment, who had no notice of the proceedings, said that it might, however, well be held valid as to the child, obviously meaning because the court had jurisdiction that far, which of course Included jurisdiction of the petitioner who commenced the proceedings. That such was the intention of the court, as understood by the legislative department of the government, is evidenced by the fact that subsequently a proviso was added to the section in the following words: “Provided, that unless the living parent or parents of-a minor consent to such adoption, it shall be the duty of the court having jurisdiction of the proceedings, upon the filing of any petition for adoption, by order to appoint a time and place for hearing such petition and cause notice of such time and place to be given to such parent or parents by personal service of said notice on such parent or parents at least ten days before the hearing or by publication thereof in a newspaper at least three weeks successively prior to said hearing, and when notice is duly given as herein provided the parent of any minor shall be bound by the order of adoption as fully as though he had consented thereto.” [Laws of 1895, ch. 18.]
It is further contended by appellant that the county court did not have jurisdiction, because consent to the adoption was not given by the next of kin. Whether the person who signed as next of kin was such in fact was one of the questions which the court had jurisdiction to determine. It was not requisite to jurisdiction that it should be determined rightly. The trite saying applies, that every court has jurisdiction to err in any case, but mere error in determining something the court has a right to determine is irremediable by challenge to the jurisdiction of the court. That the county judge had jurisdiction to determine that W. S. Russell was next of kin to the adopted child, cannot reasonably be questioned. That the fact was judicially determined appears upon the face of the order. True, it was determined by the verified petition only, so far as appears by anything in the proceedings, but, as stated before, that was not material to the jurisdiction. If determined without any evidence whatever the result would be the same. No doubt it was competent for the county judge to have required other evidence than the petition, but he was not bound to do so. If satisfied of the fact by the petition itself, whether satisfied rightly or wrongly, it was sufficient for the validity of the proceedings. The rule on that subject was definitely stated by Mr. Justice WiNslow in Cody v. Cody, 98 Wis. 445" court="Wis." date_filed="1898-02-08" href="https://app.midpage.ai/document/cody-v-cody-8185797?utm_source=webapp" opinion_id="8185797">98 Wis. 445, to the effect that three things only are necessary to give jurisdiction in an action or proceeding: First, a tribunal legally organized; second, jurisdiction of the subject matter; third, jurisdiction of the person; and these things all being present, jurisdiction continues, however erroneous the pro
So a conclusion is reached, on the merits of the case, that the decision of the circuit court was right and must be affirmed. But if we were to go further, the result would not be otherwise. The proceedings to avoid the judgment of adoption are clearly of an equitable nature, and after the lapse of many years, during which time the status of the subject of adoption has been recognized as legally fixed by the judgment of the county court, by all parties to the proceedings, one of those parties on whose motion the judgment was rendered is in no position to appeal to the equity powers of the court to declare it void. The plainest principles of estoppel apply to the situation. Appellant petitioned for the judgment. It was entered on her motion. The person most interested, the child, was a ward of the court, and its status for life was entirely and irrevocably 'changed by the result of the proceedings if they were valid. Their validity was recognized by the appellant till she became pecuniarily interested in changing her position. Clearly, she cannot be aided by a court of equity to do that to the injury of the person she was instrumental in locating in her family as her adopted son.
By the Gourt.— The judgment of the circuit court is affirmed.