Adams v. Adams

• Decision Date: 17 June 1912
• Docket Number: 15,416
• Court: Mississippi Supreme Court
• Parties: W. T. ADAMS ET AL. v. AMERICA ADAMS ET AL

59 So. 84

102 Miss. 259

W. T. ADAMS ET AL. v. AMERICA ADAMS ET AL

No. 15,416

Supreme Court of Mississippi

June 17, 1912

APPEAL from the chancery court of Tishomingo county. J. Q. ROBBINS Chancellor.

Suit by W. T. Adams and others, alleged heirs of W. W. Adams deceased, against America Adams, the alleged widow of decedent, and another, for the possession of property of which decedent died seised. From a decree for defendants complainants appeal.

As an exhibit to the bill the decree of adoption is filed. The petition seems to have been lost; but the decree, bearing date March, 1887, shows that the mother of the infant (then three months old) was Nancy Ann Gorman, and that she filed a petition praying that W. W. Adams be empowered to adopt the child, and praying that her surname be changed to Adams. The decree closed with the following clause: "It is therefore ordered, adjudged, and decreed that the custody of said Eliza Parmelia Gorman be awarded to said W. W. Adams that he be clothed with all the rights and bound by all the obligations with reference to said child as that of a parent that said child be clothed with all the rights and bound by all the obligations with reference to said W. W. Adams and his estate, real and personal, at his death, as that of a daughter; and that the name of said child be changed to Eliza Parmelia Adams."

In the year 1889 a petition on behalf of said child was filed, setting up the fact that papers in this proceeding had been destroyed by fire after the decree had been spread upon the minutes (which were not destroyed), and praying that the petition then filed and a suitable decree, together with the decree of adoption, be adopted as the original record in the proceedings, and that the record be made final. This petition was sustained.

Affirmed.

W. J. Lamb, for appellants.

Solicitors for appellees, in their briefs, cited the case of Crimstead v. Foute, 26 Miss. 481, and quoted from the same as follows:

"The record shows that the court had jurisdiction both of the cause of action and of the party and the law presumes that every fact necessary to enable the court to render judgment according to strict justice appeared on the trial.

We contend that this question directly opposes the contention of the appellees in this case and sustains the contention of the appellant, for this case said:

"As is seen by the quotation, the record shows that the court had jurisdiction both of the cause of action and of the party. "

The record in this case does not show that the court had jurisdiction and leaves out every essential allegation to show that the court had jurisdiction, and, under our contention, the petition of adoption must affirmatively show that the court did have jurisdiction and that can only be done by showing each and every requirement promulgated in the statute allowing adoption. A petition for an adoption is jurisdictional in its character and the facts which are required by the statute to give the court jurisdiction must appear in the face of the petition itself. Watt v. Dull, 75 Am. St. Rep. 143.

Our contention is that the facts necessary to give the court jurisdiction must appear in the petition, and if they do not appear in the petition, then all action taken by the court is null and void for want of jurisdiction; and it will not be contended that the facts necessary to give the court jurisdiction according to the statute appear in the substituted petition of adoption in this case.

As is said in the case of Ferguson v. Jones, 11 Am. St. Rep. 818:

"The statute must receive a strict interpretation and every requirement essential to authorize the court to exercise the special power conferred must be strictly complied with."

Solicitors for appellee contend for the theory that the court must supply what the law requires the petitioner to supply and therefore presume the court had jurisdiction. This is not a sound contention, nor is it sustained by the authorities; for, as was said in the case of Watts v. Dull, 75 Am. St. Rep. 145:

"Although under the general doctrine announced that everything will be presumed to be within the jurisdiction of the court when proceeding under a special statute which does not distinctly appear to be within it, it would seem that such presumption as to name and residence being unknown would not be entertained but that the petition by omitting any allegation on the subject is fatally defective." Watts v. Dull, 75 Am. St. 145.

Now, in this case just cited, the name and residence were not known and nothing said about it in the petition. In the case at bar, there is nothing to show that W. W. Adams, the petitioner, and that Eliza Parmelia Gorman and her mother, Nancy Ann Gorman, were residents of Tishomingo county. There is nothing to show that he ever intended to confer any gifts, grants, bequests or benefits on the appellee, Bettie So. There is nothing to show that the consent of the father, if living, or of the guardian, was procured, or whether or not her father was dead or that she had a guardian. There is nothing in the entire record to show that the chancery court of Tishomingo county, ever had any jurisdiction whatever in the matter.

The cases of Starke v. Ratcliff, Johnson v. Eaves and Cole v. Potter, cited by counsel for appellees, we do not think are at all in point and shed no light whatever on this controversy.

Solicitors for appellees contend, in speaking of the substituted adoption proceedings, and use the following expression in their brief, to-wit:

"In view of the foregoing, appellees contend the court should presume in the absence of a full setting out of the language and contents of said destroyed petition that if so set up the said petition based thereon as quoted above, would show it to be in conformity therewith."

Now, there is no proof in the record to show that the substituted decree did not set out in full the original petition and decree, and for the court to presume that there was something in the original proceedings which was not contained in the substituted papers, is asking something unknown to legal jurisprudence.

This question has been settled by our statute. By reference to section 3173 of the Code of 1906 of Mississippi, which deals with lost records, in the last clause of said section the court will find the following:

"And the same (meaning substituted papers) shall be filed and become to all intents and purposes the records."

The court will notice that the statute says: The record, which of course means that it is the only record that is to be considered, or that can be considered, for it stands in lieu or in place of one for which it was substituted.

This same section, a little higher up, says that, "The petition shall aver to be a copy of the record in all material particulars which is sought to be re-established." So this case must be passed on by the court just as if the substituted papers were the original papers and there was never any papers in this adoption proceeding except the one now before the court.

The different courts of last resort, where there is no statute to guide them, have adopted the same to be the law regarding substituted papers as well as the different text written. 34 Cyc. 609-610; Peddy v. Street, 87 Ala. 299; Atkinson v. Keel, 25 Ala. 551; Starns v. Hadnot, 42 La. 366.

The above authorities sustain and declare this to be the law on the substitution of papers:

"The record duly substituted on proper proceedings by order of a court of competent jurisdiction in the place of one lost or destroyed has the same efficacy, force, and effect as the original record would have, no more and no less. The judgment or decree of substitution merely supplies record evidence of a record previously in existence, and determines that such record did exist, was lost or destroyed, and is replaced, by a substitute which substantially confirms to the original record, and does not establish a legal sufficiency of such substitute for any particular purpose, this being the same as that of the original record." 34 Cyc. 610.

The last above quotation expressly holds that the substituted papers merely supplied a record evidence of the record previously in existence and does not establish the legal sufficiency of such substitute for any particular purpose, this being the same as that of the original record. Whitney v. Jasper Land Co., 119 Ala. 497.

Instead of counsel's contention being correct, it is directly opposed to all authorities on this subject; so the case reverts to, what rights has the appellee, Bettie South, to inherit under the adoption proceedings, as shown by Exhibit A. of the appellants' bill? In Am. & Eng. Ency., we have the following:

"The sole object of the proceedings (meaning substitution proceedings) is to restore the record, and the end of justice would not be promoted by complicating it with any other issues. Consequently, though a lost judgment may be voidable,...