Avery v. Avery

• Decision Date: 15 October 1923
• Docket Number: 171
• Citation: Avery v. Avery, 255 S.W. 18, 160 Ark. 375 (Ark. 1923)
• Parties: AVERY v. AVERY
• Court: Arkansas Supreme Court

255 S.W. 18

160 Ark. 375

AVERY v. AVERY

No. 171

Supreme Court of Arkansas

October 15, 1923

Appeal from Pulaski Chancery Court; John E. Martineau, Chancellor reversed.

Decree reversed, and cause remanded.

Philip McNemer, for appellant.

1.There being no statute in this State forbidding, Avery could lawfully adopt the child without his wife joining in or consenting thereto.1 Cyc. 198;1 C. J. 1375, par. 8.

2.The jurisdictional fact, residence of the child in the county, is plainly stated in the judgment.It is not open to collateral attack.81 Ark. 9;59 Ark. 483;16 Am.LawRep. 1020; 1 Black on Judgments, 359;1 C. J. 1394, par. 114;Id. 1393 par. 49 and cases cited;156 Ark. 331;92 Ark. 236;72 Ark 299;100 Ark. 63;1 R. C. L. 626, par. 38;Id. 625 note 8;1 Cyc. 928;23 L. R. A. 665;1 C. J. 1392, par. 105, notes 19 and 22;30 L. R. A. (N. S.) 159.

3.As to the consent of the mother of the child in this case, there was a substantial compliance with the statute in that respect, and that is sufficient.59 Ark. 483;1 Cyc. 919;1 R. C. L. 595;1 C. J. 1373, §§ 4 and 5, and note 31;86 Ark. 478;81 Ark. 7;102 Cal. 70;41 Am. St. Rep. 163; C. & M. Dig. § 9751;1 C. J.p. 1382, § 39;Id. p. 1384, § 57;Id. p. 1385, § 68;Id. p. 1390, §§ 95, 96, 99;Id. p. 1389, § 92.

J. H. Carmichael, for appellee.

1.The order of adoption is void.The child was not a resident of the county, but, if she was an illegitimate child, her domicile and residence was that of her mother, to-wit: Greenville, Miss.9 R. C. L. 548, § 10;49 L. R. A.(N. S.) 860, 863.If she was a legitimate child, her residence was that of her father, viz: in Jefferson County.According to the statements in his complaint for divorce against the mother, they were living together when this child was begotten.117 Ark. 113.And this brings the case within the decision of Morris v. Dooley,59 Ark. 483.

2.The order is void on its face because it affirmatively shows that the mother of the child appeared by affidavit and not in open court.C. & M. Dig. § 256; Words and Phrases, "Open Court";86 Ark. 478, 479;123 Ark. 383.The order is subject to attack by any one interested.16 A. L. R. 1024; 17 Ore. 204.Every fact necessary to show jurisdiction must appear of record.123 Ark. 195;Id. 211;Id. 383;54 Ark. 627.

OPINION

WOOD, J.

This action was instituted by the appellant against the appellees in the Pulaski Chancery Court.Appellant alleges in her complaint that she is the sole heir of James Avery, deceased who died intestate in Pulaski County, Arkansas, on December 30, 1920; that she was adopted by James Avery as his heir on the 25th of June, 1909, in the Pulaski Probate Court; that Avery owned, at the time of his death, certain real property in Pulaski County and Garland County, which is described in the complaint; that the report of the administrator of Avery's estate shows that he had sufficient personal property to pay all debts.She alleges that the appellee is the widow of James Avery and is denying the rights of the appellant in and to the realty mentioned.She prayed that an order be made setting aside to the appellee her dower interest in the property mentioned, and that the right, title, and interest of appellant as heir of Avery be declared and quieted in her.

The appellee, in her answer, denied that the appellant was the heir of James Avery, deceased, and denied that the appellant was adopted by Avery as alleged in the complaint.Appellee averred that she was the sole heir of Avery; that she was his lawful wife on June 25, 1909, the day when the alleged adoption order by the probate court was entered; that she was not present and did not consent to such order when same was entered; that she was married to James Avery in 1904, and they had lived together as husband and wife continuously until his death; that she did not know, until two days before the death of Avery, that it was claimed that he had adopted the appellant as his child; that she was informed by appellant's attorney of that fact at a time when her husband was in a dying condition; that the order of the Pulaski Probate Court referred to in the complaint was a fraud upon the court and a fraud upon the appellee.She further alleges that one Curtis and his wife were the parents of the appellant; that she was born in lawful wedlock, and, at the time of the alleged adoption by James Avery, he and the mother of the appellant knew the place of residence of appellant's father, which was at Pine Bluff; that appellant's father was not notified of the adoption, nor was the appellee notified.She further alleges that the appellant was not a resident of Pulaski County, and the Pulaski Probate Court was without jurisdiction to make the order, and that same was therefore void.She further set up that appellant never lived at the home of James Avery nor in his family; that Avery left no children, father, mother, or other descendants, and that, under the statutes of this State, appellee is entitled to all the property owned by James Avery at the time of his death.She denied that Avery was, at the time of his death, possessed of sufficient personal property to pay the debts against his estate, and alleges that, since his death, she has paid all the taxes on the property of the estate, and claims the same as her own.

An intervention was filed by Ed Bell and eighteen others, setting up that they were collateral heirs of James Avery, and virtually the same facts as were alleged in the answer of the appellee to the appellant's complaint.They deny the validity of appellant's alleged adoption.The appellee answered the intervention and denied the alleged relationship of the interveners to James Avery, and prayed that their complaint be dismissed.The appellant answered the intervention, admitting the relationship of the interveners, but alleged that they were estopped by order of adoption of the probate court from claiming any part of the estate of James Avery, deceased, as his collateral heirs.Appellant also replied to the answer of the appellee, denying its allegations.

The court, after hearing the testimony in the case, entered a decree dismissing the appellant's complaint for want of equity and leaving the controversy between the interveners and the appellee undetermined.From the decree dismissing the appellant's complaint she prosecutes this appeal.

The decree recites that the cause was heard upon the pleadings, the certified copies of the petition and order of the Pulaski Probate Court in the matter of the alleged adoption of the appellant by James Avery, and the testimony of certain witnesses, naming them, whose testimony was taken ore tenus at the bar of the court, and which testimony has been duly authenticated and brought into this record.The conclusion reached by the court makes it unnecessary to set out much of this testimony, and only such of it as we deem competent and material will be set forth.

To sustain her contention, appellant introduced the petition that was filed by James Avery in the Pulaski Probate Court, as follows: "Comes the petitioner, James Avery, and petitions the court for the adoption of Lizzie Allease Avery, age six years, who has no property, real, personal, or mixed; that the mother of said minor is Gertrude Rush of Greenville, Miss., and that petitioner is the father of said child, and resides in the city of Little Rock, County of Pulaski, State of Arkansas, where petitioner desires to rear, clothe, and educate said child and provide for it in all respects to the best of his ability.That petitioner desires said minor to take his name, upon adoption, and be entitled to and receive all the rights and interests in his estate that all natural and legal children are by law entitled under the statutes of the State of Arkansas.

"Wherefore, the premises seen, petitioner prays the court for an order to the end that said minor herein be adopted to him in the name of Lizzie Allease Avery, and for such other and further relief in the premises as is legal and proper."

The appellant also introduced the sworn certificate of her mother consenting to the adoption, as follows: "This is to certify that the undersigned is the natural mother of the child, Lizzie Allease Avery, and I hereby consent to the adoption of said child by James Avery, its father."

The petition by Avery and the certificate of consent by appellant's mother were duly verified on the 22d day of June, 1909.On the 25th day of June, 1909, the same being a regular day of the April term, 1909, of the Pulaski Probate Court, that court entered the following judgment: "In the matter of the adoption of Lizzie Allease Avery, a minor: On this day comes James Avery, and files and presents to the court his petition praying that one minor child, Lizzie Allease Avery, age 6 years, a resident of Pulaski County, be adopted to him, and that she has no property.Upon examination of said petition, it appearing to the court, from the petition and from the testimony of James Avery and J. A. Robinson, witnesses, that the mother of said child being unable to rear, clothe and educate said minor, and it further appearing, from the affidavit of Gertrude Rush, the mother of said minor, that, she being unable to maintain and care for said child, and that she consents to said adoption, and it further appearing to the court that the petitioner is the natural father of said child, and that he is amply able to care for, maintain and educate said minor, the prayer of the petitioner is by the court granted.It is therefore ordered and adjudged by the court that the said minor be and she is hereby declared to be adopted to the said James Avery as his own child; and it is further ordered and adjudged by the court that the...