Fisher v. Wilson

• Decision Date: 24 June 1958
• Docket Number: No. 37883,37883
• Citation: 328 P.2d 420
• Parties: Charlie Howard FISHER, Plaintiff in Error, v. Martha Fisher WILSON and Hobart W. Wilson, Defendants in Error.
• Court: Oklahoma Supreme Court

Page 420

328 P.2d 420

1958 OK 164

Charlie Howard FISHER, Plaintiff in Error, v. Martha Fisher WILSON and Hobart W. Wilson, Defendants in Error.

No. 37883.

Supreme Court of Oklahoma.

June 24, 1958.

Rehearing Denied July 30, 1958.

Syllabus by the Court

1. Where a writ of error or a purported appeal operates to remove the record to the appellate court, yet, when technically not the appropriate remedy, and a pure question of law proper for review by certiorari is presented, the court in its discretion may regard the writ as fairly such in import and to all intents, and may review as on certiorari and reverse or affirm accordingly.

2. Where a divorce decree is granted upon the grounds of cruelty, and partial custody of the children of the divorced parents is awarded to the parent adjudged guilty of cruelty, the adjudication of cruelty in the divorce decree becomes inoperative within the purview of 10 O.S.1951 Sec. 44, and the consent of such parent is necessary to an adoption of the children thereafter.

Appeal from the County Court of Carter County; Christine Legate, Judge.

From a decree of adoption the natural father appeals. There being no right of appeal, the Supreme Court of its own motion retained the cause as if presented in an action for review as on certiorari. Order of said County Court reversed.

John Allen Phillips, II., Durant, for plaintiff in error.

Wilson Wallace, Ardmore, for defendants in error.

WELCH, Chief Justice.

We have previously held that there is no right of appeal from a decree of adoption under 10 O.S.1951 Sec. 41 et seq., In re Hughes, 88 Okl. 257, 213 P. 79, and In re Davis, 206 Okl. 405, 244 P.2d 555.

It is, however, permissible where other remedies are not provided as in this instance, to review in a proper action in the nature of certiorari, judicial proceedings of inferior tribunals, and such review by certiorari not only applies to jurisdiction to act, but extends to the manner in which the jurisdiction of the inferior court was exercised, as applied in test of jurisdiction, when a question of law with no issue of fact is involved. This court is authorized under the provisions of Sec. 2, Art. 7 of the Constitution to issue writ of certiorari in cases where no appeal or proceeding in error lies, and error cannot otherwise be corrected. In re Benedictine Fathers of Sacred Heart Mission, 45 Okl. 358, 145 P. 494; Consolidated School District No. 8, Cimarron County v. Wilder, 148 Okl. 91, 297 P. 280; Duncan v. Askew, 207 Okl. 542, 251 P.2d 515; Allison v. Howell, 204 Okl. 404, 230 P.2d 706.

In re Morgan's Estate, 209 Mich. 65, 176 N.W. 606. The Supreme Court of Michigan held:

'While a writ of error operates to remove the record to the appellate court, yet, when technically not the appropriate remedy, it does not become a mandate compelling the court of review to act and reverse or affirm the case; but where a pure question of law proper for review by certiorari is presented and has been fully argued and submitted, the court in its discretion may regard the writ as fairly such in import and to all intents, or allow the writ of certiorari in form nunc pro tunc and reverse or affirm accordingly.'

See, also, Gallup American Coal Co. v. Gallup Southwestern Coal Co., 39 N.M. 344, 47 P.2d 414; Petition of Bangor Electric Co., 295 Pa. 228, 145 A. 128-129.

In the case of Gallup Southwestern Coal Co. v. Gallup American Coal Co., 39 N.M. 94, 40 P.2d 627, at page 629, on motion for rehearing, the court said.

'The suggestion was also made in conference, and aroused some interest, that it might be a useful procedural innovation if we were to hold that where an appeal has been allowed to this court and perfected by the filing of a record of the proceedings, and the appeal must be dismissed, as in this case, because the statute fails to afford that remedy, the court may of its own motion, and in a proper case, at its discretion, retain the cause as if on certiorari, deciding such of the contentions, if any, as are open on certiorari. While we concluded against proceeding thus of our own motion, we determined to give the matter further consideration in case the appellant should, as we anticipated that it might, return with an application for certiorari.'

As we observe was done and reported in 39 N.M. 344, 47 P.2d 414.

We note that the Supreme Court of New Mexico in the case of Jackling v. State Tax Commission, 40 N.M. 241, 58 P.2d 1167, 1168, had before it an appeal. There was no statute authorizing appeal in such case, but there, as in the Gallup case, there could be a review by certiorari. Therefore in this case the court proceeded to retain the case and decide it as on certiorari, without following the cumbersome method as applied in the Gallup case.

The headnote of that case reads as follows:

'Action by D. C. Jackling against the State Tax Commission. From an adverse judgment, the plaintiff appeals. The plaintiff having no right to appeal, the Supreme Court of its own motion retained the cause as if presented on certiorari.'

Here we have an appeal which has been allowed to reach this court and has been perfected by the filing of transcript of proceedings in lower court and with complete brief on each side, although there is no statutory authority therefor. This is a case which may be retained on certiorari, and by doing so, we can eliminate the possible necessity of again having to consider the same issues on certiorari at a later date, an unnecessary expense upon the litigants, and an untimely and unnecessary delay of justice.

We should here observe that no interested party has sought dismissal of this cause. Involving as it does the important matter of the validity of the adoption of children, it is made evident that both parties desire a decision on the merits. Both parties have briefed on the merits. The plaintiff in error contends the County Judge had no jurisdiction for lack of consent of the father, while the defendant in error contends such consent was not necessary. A determination on the merits is important in the lives of these children and we have found that ample authority exists for us to retain the cause and, for the good of all, to determine the question of authority and jurisdiction of the trial court.

We therefore of our own motion elect to determine the issue as if presented on certiorari, thus considering the contentions of both parties and rendering a decision thereon as they quite apparently desired that we do.

The issue to be decided is the validity of the judgment of the trial court entered on May 31, 1957, in which judgment a decree of adoption of two minor children was ordered by said court in favor of defendants in error.

On August 23, 1952, a decree of divorce was entered by the district court of Bryan County, Oklahoma, divorcing the parents of these children. The divorce was granted to the defendant in error, Martha Fisher Wilson, the mother, on the grounds of extreme cruelty. The mother was granted the custody of the children, subject to the right of the father to have them with him at his home on two week ends, beginning on Friday and ending on Sundary, each month. The decree further provided that the father is to have the custody of the children during the time that he is on vacation in the summer months, said vacation period not to be longer than fifteen days.

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