Ex parte Fichtel

• Citation: 84 S.W.2d 977,229 Mo.App. 847
• Parties: EX PARTE HERMAN FICHTEL, HERMAN H. NEITER ET AL., PETITIONERS, v. ED. HOUSER ET AL., RESPONDENTS
• Decision Date: 27 June 1935
• Court: Court of Appeal of Missouri (US)

84 S.W.2d 977

229 Mo.App. 847

EX PARTE HERMAN FICHTEL, HERMAN H. NEITER ET AL., PETITIONERS, v. ED. HOUSER ET AL., RESPONDENTS

Court of Appeals of Missouri, Springfield

June 27, 1935

Rehearing denied, July 26, 1935.

CHILD REMANDED TO CUSTODY OF RESPONDENTS.

Oliver F. Erbs and Carter & Jones for petitioners.

The circuit court does not have jurisdiction in adoption proceedings unless the person sought to be adopted resides in the county where the proceedings are had. Thompson v Arnold, 208 Mo.App. 102, l. c. 106. Adoption statutes are in derogation of the common law, and like all other similar statutes, must be strictly, or at least substantially, complied with. Rochford v. Bailey, 17 S.W.2d 941. Jurisdiction over the subject-matter cannot be waived or conferred even by consent. Drainage District v Voltmer, 256 Mo. 152; St. Louis v. Glasgow, 254 Mo. 262.

Harry Clymer and William P. Elmer for respondents.

In the case of adoption of an illegitimate child the mother is the only parent whose consent to the adoption is required by law. 1 C. J. 1386, par. 74; 1 R. C. L. 609; 30 L.R.A. (new series) 152, note; 154 Mass. 378; 28 N.E. 296; 258 N.Y.S. 651; 24 A L. R., l. c. 428; 1914A Am. Anno. Cases 224, note. It was not necessary to serve summons on child under twelve years old in adoption proceedings. Rochford v. Bailey, 17 S.W.2d l. c. 944. A court reviewing an order of judgment in a habeas corpus proceeding will not presume error, but, in the absence of a contrary showing will presume that the order or judgment is correct and that the trial court did not abuse its discretion. State ex rel. v. Skinker, 25 S.W.2d l. c. 477. The return to the writ being the first pleading, the facts set out in the return are to be taken as true and accepted as the ultimate facts in the case, unless such facts are denied or their effect avoided by some appropriate pleading. Thompson v. Sanders, 70 S.W.2d l. c. 1052. Ex Parte Bass, 40 S.W.2d 457. Where the judgment is regular on its face and there is no showing that such judgment is invalid it cannot be collaterally attacked. Hunter v. Barrett, 79 S.W.2d 506. A hearing on habeas corpus cannot be allowed to take the place of an appeal or writ of error. Buckley v. Hall, 215 Mo. 93; Ex Parte Coder, 44 S.W.2d l. c. 181; Child Saving Institute v. Knobel, 37 S.W.2d l. c. 926.

SMITH, J. Allen, P. J., and Bailey, J., concur.

OPINION

SMITH, J.

Herman H. Neiter and Anna Neiter filed their petition with the clerk of this court praying that a writ of habeas corpus be issued to the end that Herman Fichtel, sometimes known as Carl Edward Houser, may be discharged from unlawful detention by Ed Houser and Harriette Houser. Under said petition a writ was issued on April 16, 1935, returnable on April 26, 1935. On the return date the respondents filed their verified return, which, omitting caption, signature and jurat, is as follows:

"Now come Ed Houser and Harriette Houser and for their return to the writ of habeas corpus issued by this court in this cause aver that they have the care, custody and control of the minor child known as Carl Edward Houser and have had such care, custody and control of said minor child since the--day of January, 1934; that said minor child was first placed in their care and custody and under their control on the--day of January, 1934, by one Anna Fichtel, who was the mother of said minor child and the only legally recognized parent of said minor child, said Anna Fichtel being then and there a single woman who had never been married, and who voluntarily on said--day of January, 1934, placed said minor child in the home of respondents in Crawford County, Missouri, and who then and there requested said respondents to care for and keep said minor child and to adopt said minor child in a legal and valid manner, as provided by law, in order that said minor child might have a proper and suitable home and be properly reared and provided for; that said minor child is now in the care, custody and control of these respondents under and by virtue of an order, judgment and decree of adoption rendered by the Juvenile Division of the Circuit Court of Crawford County, Missouri, at the February term, 1934, upon the application and petition of these respondents and the written verified consent of the said Anna Fichtel, the mother and the sole and only legally recognized parent of said minor child; that said petition and application for such adoption was filed by these respondents in the Circuit Court of Crawford County, Missouri, on the 19th day of February, 1934, and that the verified written consent of the said Anna Fichtel, the mother of said minor child as aforesaid, was attached to said petition and application and filed therewith; that upon the filing of said petition and application and verified written consent as aforesaid, the Circuit Court of Crawford County, Missouri, by its order duly entered of record appointed one Wm. R. Lay, a duly licensed and practicing attorney of Crawford County, Missouri, as guardian ad litem for said minor child and to represent said minor child; that on the 24th day of February, 1934, the Juvenile Division of the Circuit Court of Crawford County, Missouri, heard the petition and application of these respondents, at which hearing the said Wm. R. Lay as guardian ad litem for said minor child appeared and participated, and entered its judgment and decree sustaining such petition and application in accordance with the statutes in such cases made and provided, all of which facts will fully appear by the certified copy of the petition and application and verified written consent aforesaid, filed herewith and marked Exhibit 'A,' and a certified copy of the record entries appointing the guardian ad litem and adjudging and decreeing the adoption of said minor child by these respondents, marked Exhibit 'B' and made a part of this return.

"Respondents aver that at the time the petition and application for adoption of said minor child was filed in the Circuit Court of Crawford County, Missouri, as aforesaid, and at the time said matter was heard in the juvenile division of said circuit court, these respondents were legal residents of Crawford County, Missouri, and that said minor child resided with them and had been so residing with them since the--day of January, 1934, at the request and direction of and with the consent of the mother of said child who was then the only legally recognized parent of said child, and that the Circuit Court of Crawford County, Missouri, had full and complete jurisdiction of the cause of action, as well as full and complete jurisdiction over all the parties, including said minor child, and was authorized under the law to hear said petition and application and determine the same.

"And the said Ed Houser and Harriette Houser, in obedience to said writ of habeas corpus, now produce the body of the said Carl Edward Houser before this court to be dealt with according to law."

The Exhibit A referred to in the above return is a certified copy of the petition and application, and a copy of the written verified consent to the adoption filed in the Juvenile Division of the Circuit Court of Crawford County, Missouri. A copy of the verified petition, caption and signatures omitted is as follows:

"Now on this day come Ed Houser and Harriette Houser and represent to the court that they are husband and wife and now reside in Crawford County, Missouri, and have resided in said county and State for more than twenty years last past; that Carl Edward Fichtel is a male child now just past two months of age, having been born in the City of Saint Louis, Missouri, on the 6th day of December, 1933, and is the child of one Anna Fichtel who was at the time of the birth of said child, and now is single and unmarried and has never been married; that said child, to-wit, Carl Edward Fichtel, now is, and has been in the care, custody and control of these petitioners in Crawford County, Missouri, since the--day of January, 1934, by and with the consent of the said Anna Fichtel, the mother of said child, and that these petitioners now have the sole care, custody and control of said child by and with the consent of his said mother and are now providing for and supporting said child; that petitioners have no children of their own and are well able financially to care for, maintain and educate said child and are willing, anxious and desirous of doing so in order that said child may bear their name and may be properly reared and educated and become the legal heir of said petitioners.

"Your petitioners further represent that they file herewith the verified written consent of the said Anna Fichtel, the mother of said child, in which said Anna Fichtel consents to the adoption of said child by these petitioners.

"Your petitioners, therefore, pray that they may be permitted to adopt the said Carl Edward Fichtel as their own lawful child and heir and that his name be changed to Carl Edward Houser, and for such other and further order, judgment and decree as to the court may seem just and proper."

A copy of the written verified consent of Anna Fichtel, caption and signature omitted, is as follows:

"Now on this day comes Anna Fichtel and represents to the court that she resides in the City of Saint Louis, Missouri; that she is now twenty-six years of age and is the mother of Carl Edward Fichtel; that said Carl Edward Fichtel is now just past two months of age, having been born in the City of Saint Louis, Missouri, on the 6th day of December, 1933; that she is now single and unmarried and has never been married, and that she is the only legally recognized parent of said Carl Edward Fichtel; that said infant child is now in the care, custody and control of Ed...