Dean v. Brown

• Decision Date: 06 March 1950
• Docket Number: No. 4-9093,4-9093
• Parties: DEAN v. BROWN et al.
• Court: Arkansas Supreme Court

Page 623

227 S.W.2d 623

216 Ark. 761

DEAN v. BROWN et al.

No. 4-9093.

Supreme Court of Arkansas.

March 6, 1950.

Rehearing Denied April 3, 1950.

Embry & Sutton, Chandler, Campbell & Campbell & Campbell, Hot Springs, for appellant.

Hebert & Dobbs, Hot Springs, for appellees.

McFADDIN, Justice.

This appeal necessitates the determination of (1) the validity of an order of adoption made in 1911, and (2) the effect of subsequent legislation concerning matters of adoption.

Appellant, Mrs. Gloria Crawford Dean, was born in Garland County, Arkansas, in 1908, the child of Mr. and Mrs. Charles W. Bond, and was named 'Nettie Bond'. The child's mother died in the early part of 1911; and on October 2, 1911, Bert Crawford, and Mrs. Eva Crawford, his wife, filed petition in the Garland Probate Court to adopt Nettie Bond. The petition, omitting caption, signature and jurat, reads:

'Comes Bert Crawford and Eva Crawford, his wife, and asks this Honorable Court to make an order adopting Nettie Brown Bond, a minor, and state:

'That they are bona fide residents of Hot Springs, Garland County, Arkansas, for more than one year. That they desire to adopt Nettie Brown Bond, a female minor child of C. W. Bond, of the age of three years; that the mother of said child is dead; that it has no property coming to it; that the father of said minor consents that this order be made:

'Wherefore petitioners asks that said order be made and that they be permitted to adopt said minor and that it be permitted to take and be known by the name Gloria Brown Crawford.'

On the petition, there was this statement with a signature and jurat: 'C. W. Bond being duly sworn states: that he is the father of said above mentioned minor; that all the facts above set out are true, and that he is willing and requests that this order of adoption be made.'

The record of the Garland Probate Court of October 11, 1911 contains the following order:

'Comes Bert Crawford and Eva Crawford, his wife, and file in open Court their petition asking that they be permitted to adopt Nettie Brown Bond, a minor, a child of three years of age.

'And it appearing to the Court that the mother of the said child is dead and that the father, C. W. Bond, has given his written consent to said adoption, that said child has no property coming to it, that the said Bert and Eva Crawford are of good moral character and financially able to care for and maintain said minor child, said petition is by the Court granted.

'It is therefore by the Court considered, ordered and adjudged that from and after this date the said Nettie Brown Bond shall take the name and be henceforth known to the world as Gloria Brown Crawford; and shall be entitled to and receive all the rights and interest in the estate of the said Bert and Eva Crawford just the same as she was a natural heir of said petitioners.'

We shall refer to the foregoing as 'the order of adoption' or 'adoption order', even though we hold (in Section 1, infra,) that this order was not legally sufficient to effectuate adoption. The Crawfords took Nettie Bond into their home; and she became known as 'Gloria Brown Crawford', and under that name attended school in Garland County for several years. By 1916, Mr. and Mrs. Crawford had separated, and even though Mrs. Crawford owned a home in Hot Springs, she professed herself financially unable to support the child and arranged to have Gloria (then eight years of age) go to Agra, Oklahoma, to live with a Mr. and Mrs. King. Mrs. Crawford was not related to the Kings; and a mutual friend had located the King home for the little girl. The appellant testified that she had intermittent correspondence with Mrs. Crawford until 1918; but after that year there was never any further contact between Mrs. Crawford and the child that she had attempted to adopt.

Gloria Brown Crawford continued to live with the Kings in Oklahoma. She was known as 'Nettie King' and was educated by, and continued to live with, them as a daughter until her marriage in 1926. They had no children, and though they never adopted Nettie, they gave her an Oklahoma farm. Just when and how this gift came about is not developed in the evidence.

Mrs. Eva Crawford continued to live in Hot Springs and, by remarriage, her last name became Priddy. She died intestate in Garland County, Arkansas, on February 2, 1947, leaving an estate of both realty and personalty; and an administrator of her estate was appointed on February 19, 1947. Her nieces and nephews, the appellees, are her heirs-at-law, unless appellant's adoption be held valid. When the nephews and nieces attempted to obtain a quitclaim deed from appellant in 1947, she learned of the death of Mrs. Crawford and the possibility of her inheritance. Thereupon--on September 13, 1948--appellant filed intervention in the administration proceedings in Garland County, and claimed the entire estate of Mrs. Eva Crawford Priddy, because of the 1911 adoption proceedings.

On November 24, 1948 the nephews and nieces (appellees) filed answer to the intervention and attacked the validity of the 1911 adoption order. This pleading was the first instrument filed in any court that questioned the validity of said adoption. There was a hearing in the Probate Court on the said intervention of appellant; and the facts were developed, as heretofore stated. The Probate Court adjudged the adoption to be boid and dismissed the intervention. From that judgment there is this appeal, presenting the questions now to be discussed.

I. Validity of the Adoption Order. Act 28 of 1885, found in Sec. 1142 et seq., Sandels and Hill's Digest of 1894; Sec. 1341 et seq. of Kirby's Digest of 1904 and Sec. 252 et seq. Crawford and Moses' Digest of 1921, prescribes the jurisdictional essentials of a valid order of adoption. This 1885 Act was the law in 1911 when the order here involved was made, so we test the validity of the adoption order by that Act. See Dean v. Smith, 195 Ark. 614, 113 S.W.2d 485.

One of the requirements of the 1885 Act was that the proceedings for adoption be conducted in the county in which the minor resided. There is nothing in the order of adoption in the case at bar to show the county of residence of the minor; and we have repeatedly held that the allegation as to such residence must appear on the face of the order of adoption, or the order may be attacked collaterally. The first such case so holding was MORRIS V. DOOLEY, 59 ARK. 483, 28 S.W. 30 AND 430.¹ Another case, so holding, is Minetree v. Minetree, 181 Ark. 111, 26 S.W.2d 101. In the last cited case, many other cases are listed as following the law recognized in Morris v. Dooley. The correctness of the holding in that case is not open to reconsideration by us at this time. There are many cases of this Court which hold to be void orders of adoption similar to the one at bar when the order failed to recite the residence of the minor. The case of Morris v. Dooley is directly in point, and we decline to overrule it; so we hold that the purported order of adoption made by the Garland Probate Court in 1911 is void on this collateral attack, because neither the order, nor the petition, showed that the minor, Nettie Bond, was a resident of Garland County, Arkansas, at the time the order was made.

II. Motion for Order Nunc Pro Tunc. By trial amendment the appellant asked the court to correct, by order nunc pro tunc, the defect in the 1911 order of adoption. The trial court was correct in refusing to grant this request. The function of an order nunc pro tunc is to have the record recite now what actually occurred then. In Citizens' Bank of Mammoth Spring v. Commercial Bank, 118 Ark. 497, 177 S.W. 21, 24, we said: 'The purpose of a nunc pro tunc order is to make the record reflect the transaction that actually occurred * * *'. In Liddell v. Landau, 87 Ark. 438, 112 S.W. 1085, 1086, we said of the power to correct a record nunc pro tunc: 'This power can never be used to make the record speak what it should have spoken, but what it did not in fact speak; * * *' See also Hall v. Castleberry, 204 Ark. 200, 161 S.W.2d 948.

The evidence in the case at bar completely fails to show that any evidence was offered at the adoption proceedings in 1911 as to the residence of the minor. It is not for the court to decide now where Nettie Bond actually resided in 1911; the question is whether the court in 1911 heard evidence to show that the minor then resided in Garland County. There is in the record now before us no evidence on which a nunc pro tunc order could be based; and the trial court was correct in refusing to make it.

III. Act 137 of 1935 and Act 369 of 1947. Appellant claimed in the trial court, and reiterates here, that the various changes made in the adoption laws since 1911 have either cured, or rendered impervious to attack, the defect in the adoption order in this case. It is true that the Legislature has made several revisions and changes in the adoption law. Some of these are: Act 137 of 1935, see Sec. 254 et seq., Pope's Digest; Act 157 of 1935, see Sec. 260, Pope's Digest; Act 328 of 1937, see Sec. 262, Pope's Digest; Act 369 of 1947, see Sec. 56-101 et seq., Ark.Stats.1947; and Act 408 of 1947, see the note following Sec. 56-112, Ark.Stats.1947. We held in Dean v. Smith, 195 Ark. 614, 113 S.W.2d 485, that the law in effect at the time of the purported adoption governed the validity and effect of the order. In the light of the above case, we examine the above Acts for either a curative Act or a statute of limitations; and then we determine the possible effect of such act or statute on the case at bar.

Sec. 10 of Act 137 of 1935, found in Sec. 264, Pope's Digest reads: 'After a decree of adoption shall have been made and the child shall in fact have been adopted and the relation of parent and child has continued for the period of two years, the decree of adoption shall not be questioned by reason of any jurisdictional or procedural...