Chamberlin v. Thorne

• Decision Date: 10 April 1937
• Docket Number: 33319.
• Citation: 145 Kan. 663,66 P.2d 571
• Parties: CHAMBERLIN et al. v. THORNE et al.
• Court: Kansas Supreme Court

66 P.2d 571

145 Kan. 663

CHAMBERLIN et al. v. THORNE et al.

No. 33319.

Supreme Court of Kansas

April 10, 1937

Syllabus by the Court.

Questioning of validity of decree of adoption in any proceeding other than a direct appeal or petition to set aside the adoption is a "collateral attack," as regards question of sufficiency of evidence.

Suit to establish title to property of deceased, for an accounting and to cancel certain deeds on ground that decree of adoption was invalid constituted a "collateral attack," as regards question of sufficiency of adoption proceedings.

Decree of adoption has benefit of presumption of jurisdiction which attaches to judgments of courts of general jurisdiction since probate courts, as to orders of adoption, are courts of general jurisdiction.

Mere silence of record as to existence of facts essential to jurisdiction of probate court in adoption proceedings is not sufficient to defeat judgment of adoption on collateral attack.

Record of probate court need not set forth all evidence introduced in adoption proceeding (Gen.St.1935, 38-105, 38-107; Rev St.1923, 38--106).

Where record in adoption proceeding did not purport to set forth all evidence introduced, presumption existed in favor of validity of order of adoption (Gen.St.1935, 38-105, 38-107; Rev.St.1923, 38--106).

On collateral attack, necessary presence, proper residence and consent of parties would be presumed in support of judgment of adoption, where contrary did not appear front record (Gen.St.1935, 38-105, 38-106, 38-107; Rev.St. 38--106).

Petition to establish title to property of deceased and for other relief attempting to set aside judgment of adoption on ground that proceedings were void because court lacked jurisdiction held demurrable.

1. The questioning of the validity of a decree of adoption in any proceeding other than a direct appeal or a petition to set aside the adoption is a collateral attack.

2. A probate court, in this state, relative to an order of adoption, is a court of general jurisdiction; the failure of the record to show affirmatively the existence of facts essential to jurisdiction is not sufficient to defeat the judgment upon a collateral attack; where the record is merely silent, the presumption is that the necessary jurisdictional facts existed.

3. The statutes of this state do not require that the record of a probate court should set forth all the evidence introduced in an adoption proceeding; the record in the instant case did not purport to do so and the presumption is in favor of the validity of the order of adoption and not against it.

4. The petition in a collateral action brought to establish title to property of a deceased person, and for other relief, by attempting to set aside a judgment of adoption on the ground the proceedings were void because of the court's lack of jurisdiction, examined and held, the demurrer thereto was properly sustained.

Appeal from District Court, Johnson County; Garfield A. Roberds Judge.

Action by Tunis D. Chamberlin and others against Robert L. Thorne and others. From an adverse judgment, plaintiffs appeal.

Charles W. Gorsuch and John L. Kirkpatrick, both of Olathe, for appellants.

S. D Scott and Howard E. Payne, both of Olathe, for appellees.

WEDELL Justice.

This action was brought by collateral heirs against Robert L. Thorne, an adopted son, H. M. Beckett, administrator of the estate of Ada C. Thorne, deceased, and H. M. Beckett, trustee. Four causes of action were pleaded for the respective purposes of establishing title to property of the deceased, for an accounting, to cancel certain deeds held by the trustee and for the ejectment of defendants from property owned by the deceased. Against the petition defendants lodged a demurrer. The demurrer was on four grounds. The third ground was the petition did not state facts sufficient to constitute a cause of action. On that ground the demurrer was sustained and that ruling is the sole basis of this appeal.

The real question is the sufficiency of the adoption proceedings as against this collateral attack. We shall first narrate the substance of a few general facts disclosed by the petition:

Plaintiffs below, appellants here, are a brother, a sister and nephew of the deceased, Ada C. Thorne, who died intestate. Deceased had no direct heirs unless it be the defendant, Robert L. Thorne, the validity of whose adoption is challenged in this action. Robert L. Thorne was the child of Blanche Parson, a single woman. The adoptive parents, John R. Thorne and Ada C. Thorne, residents of Johnson county, Kan., acquired custody of the child when it was two weeks old, and about a quarter of a century before this action was commenced. The adoptive father died in the year 1931. The adoptive mother died in August of 1935. This action challenging the validity of the adoption was filed in December of 1935.

Parts of the petition are not quoted in the abstract before us but appear in abstracted form. We are, therefore, obliged to set forth those abstracted portions as presented to us. The portions of the petition challenging the adoption proceedings are as follows:

"Par. 14. That the defendants unlawfully claim that the defendant, Robert L. Thorne, is the sole heir of said Ada C. Thorne, deceased, under and by virtue of certain proceedings undertaken and acts done by said Ada C. Thorne in her lifetime and one John R. Thorne, in the year of 1911, in the State of Missouri, and in the year of 1913, in the Probate Court of Johnson county, Kansas.

"Par. 15. That a full, true and complete copy of the record of said proceedings as the same appears of record in Journal 22, pages 247, 248 and 249 in the office of said Probate Court, and as the two pages there of which comprise the so-called Deed of Adoption appears of record in the office of the Register of Deeds for Johnson county, Kansas, in Book 5 of Miscellaneous Records at page 287, there being no other record thereof at or in any other public office, court or place of record in the states of Missouri and Kansas, is hereto attached as 'Exhibits C, 1, 2, 3 and 4' and is made a part of the allegations of this cause of action as though written therein.

"Par. 16. The laws of Missouri relative to adoption at times hereinbefore mentioned appear in vol. 1, Revised Statutes of Missouri, 1909, at pages 591, 592 and 593, being chapter 20, Children, article 1, sections 1671 to 1678, both inclusive, quoted and set out in full. Par. 17, alleges interpretation of laws of Missouri by the Supreme Court thereof by quotations and abstracted statements from the following cases: Sarazin v. Union Railroad Co., 153 Mo. 479, 55 S.W. 92; Hockaday v. Lynn, 200 Mo. 456, 98 S.W. 585, 8 L.R.A. (N.S.) 117, 118 Am.St. Rep. 672, 9 Ann.Cas. 775; Gipson v. Owens, 286 Mo. 33, 226 S.W. 856.

"Par. 18. That said John R. Thorne and Ada C. Thorne, did not at any time record said purported deed of adoption in any County, in the State of Missouri, and because of their being residents of the State of Kansas, as aforesaid and nonresidents of the State of Missouri, could not and did not comply with the provision of the law requiring such record.

"Par. 19. That having ineffectually attempted to adopt the defendant, Robert L. Thorne in the State of Missouri as aforesaid, said John R. Thorne and said Ada C. Thorne, then afterwards and on or about June 17, 1913, appeared in the Probate Court of Johnson County, Kansas, and carried on the proceedings set out in said 'Exhibit C pages, 1, 2, 3 and 4', which proceedings are wholly void as to the adoption of said Robert L. Thorne because of reasons appearing on the face thereof. (Pars. 20, 21, and 22, omitted.)

"Par. 23. That at and on all the times and dates mentioned in said record said John R. Thorne and said Ada C. Thorne, were husband and wife, residing in Johnson County, Kansas, and at no time or times did said John R. Thorne and Ada C. Thorne or either of them, ever reside within the State of Missouri."

The deed of adoption attached to the petition reads:

"This deed of adoption, Made and entered into this seventeenth day of February, 1911, by and between John R. Thorne and Ada C. Thorne, his wife, of the County of Johnson, State of Kansas, parties of the first part, and Blanche Parson, party of the second part.

"Witnesseth: That in accordance with and by virtue of the statutes of the State of Missouri relating to the adoption of children, said John R. Thorne and Ada C. Thorne, and each of them, for good and valuable consideration to them moving, do hereby adopt the certain male child of said second party, named Park Parson aged fifteen days, to be known from this time henceforth as Robert Lane Thorne, and as said first parties legal child and heir, with all the reciprocal relations of parent and child and all the rights and privileges which he might or could enjoy were he their own natural child and agree to govern, educate, maintain, provide for and in all respects treat said child as though he were their own natural off-spring and in keeping with their own station in life.

"In consideration of the promises said Blanche Parson, the parent of said child so adopted, gives consent for the adoption of said child by signing this deed and in consideration of the foregoing covenants and agreements, hereby agrees that she shall not hereafter have any right or claim for the services, wages, control, custody or company of said child.

"In witness whereof, the said parties of the first part have hereunto set their hands this twenty-third day of August, 1911, and said party of the second part, now a single woman, has hereunto set her hand this seventeenth day of February, 1911.

"John R. Thorne,

"Ada C. Thorne,

"Blanche Parson."

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