Furgeson v. Jones

• Decision Date: 20 December 1888
• Citation: 17 Or. 204,20 P. 842
• Parties: FURGESON v. JONES. [1]
• Court: Oregon Supreme Court

20 P. 842

17 Or. 204

FURGESON v. JONES. ^[1]

Supreme Court of Oregon

December 20, 1888

Appeal from circuit court, Marion county.

(Syllabus by the Court.)

To give a decree of the county court adopting a child any validity such court must have acquired jurisdiction (1) over the parties seeking to adopt such child, (2) over the child to be adopted, and (3) over the parents of such child.

Where it affirmatively appears that an adverse party to a decree was a non-resident of the state at the time of its rendition and the record is silent as to his appearance or notice there is no presumption that such court acquired jurisdiction over his person.

No person shall be personally bound by a decree until he has his day in court, by which is meant, until he has been duly cited to appear, and has been afforded an opportunity to be heard. A judgment without such citation and opportunity wants all the attributes of a judicial determination.

Where a court of general jurisdiction has summary powers conferred upon it which are wholly derived from statute, and not exercised according to the course of the common law, or are not part of its general jurisdiction, its decisions must be regarded and treated like those of courts of limited and special jurisdictions.

Estoppels to be binding, must be mutual.

A child by adoption cannot inherit from the parent by adoption unless the act of adoption has been done in strict accordance with the statute.

The right of adoption was unknown to the common law, and repugnant to its principles. Such right, being in derogation of the common law, is a special power conferred by statute, and the rule is that such statutes must be strictly construed.

Consent lies at the foundation of statutes of adoption, and, when it is required to be given and submitted, the court cannot take jurisdiction of the subject-matter without it.

Under our statutes, when the parents are living, and do not belong to the excepted classes, such consent must be given, and is a prerequisite to jurisdiction.

There is a marked distinction between jurisdiction and the exercise of jurisdiction. When a jurisdiction has attached, all that follows is but the exercise of jurisdiction, but jurisdiction does not attach until the conditions upon which it depends are fulfilled. Hence a decree rendered without jurisdiction does not estop any one, and may be collaterally assailed in any action.

Geo. H. Burnett, for appellant.

Seth R. Hammer and G.G. Bingham, for respondent.

STRAHAN, J.

This is an action of ejectment prosecuted by the plaintiff to recover certain real property situated in Marion county.

It appears from the findings that one D.W. Jones was the owner of the real property in controversy at the time of his death, and that he died intestate in said county of Marion. That one Emma G. Charlesworth was his only heir at law, unless the plaintiff was also an heir, by virtue of a certain decree of the county court of Marion county, Or., by which said court allowed said D.W. Jones and the defendant herein to adopt the plaintiff, if said decree is valid. That prior to the commencement of this action said Emma G. Charlesworth duly conveyed all her interest in said real property to the defendant, who thereby became the owner thereof, unless the plaintiff was entitled to inherit one-half thereof by virtue of said decree of adoption. That prior to September 28, 1876, said Emma G. Charlesworth and Sylvester H. Jenner were husband and wife, and the plaintiff was born to them in lawful wedlock, and that on the 28th day of September, 1876, said parties were by a decree of the district court of the Twelfth judicial district, in the state of California, duly divorced, and the care and custody of the plaintiff was duly awarded to said Emma. That on April 2, 1877, said D.W. Jones, and the defendant, his wife, made and signed a certain petition, which was presented to the county court of Marion county, Or., as follows:

"To the Hon. John Peebles, County Judge for the County of Marion and State of Oregon: Your petitioners, D.W. Jones and Sarah A. Jones, his wife, of the city of Salem and state of Oregon, respectfully represent to your Hon. Court that they now have the care and custody of Mary Ellen Jenner, a female child of the age of ten years; that the parents of the said child are Sylvester H. Jenner, now residing in San Francisco, California, and Emma G. Jenner, since divorced from said Sylvester Jenner, and married to George Charlesworth; that in said decree of divorce the care and custody of said child was given to its mother, Emma G. Jenner, now Emma G. Charlesworth; that your petitioners desire to adopt the said Mary Ellen Jenner as their own child, and pray your Hon. Court for a decree making said child, to all legal intents and purposes, the child of petitioners, and that the name of said child be changed to Mary Ellen Jones.

[Signed] "D.W. JONES.

"S.A. JONES." "State of Oregon, County of Marion--ss.: I, Emma G. Charlesworth, being duly sworn, say that I am the mother of Mary Ellen Jenner, mentioned in the foregoing petition of D.W. Jones and wife; that I was divorced from Sylvester H. Jenner at San Francisco on or about September 1st, 1876, and that the court in granting the divorce awarded the care and custody of said child to its mother, deponent herein; that I hereby consent to the adoption of said child by said D.W. Jones and wife, and that the name of said child be changed to Mary Ellen Jones.

EMMA G. CHARLESWORTH.

"Subscribed and sworn to before me the 19th day of March, 1877.

[Seal.]

"SETH R. HAMMER, Notary Public."

Indorsed: "Ordered that the within application be granted, and that a decree be entered in accordance with the prayer of this petition, and the law in such case provided.

J.C. PEEBLES, County Judge.

"April 2, 1877.

"Filed April 2, 1877. GEO. A. EADES, Clerk."

On the same day the following decree or order was entered in said matter by said county court:

"Now, at this day, comes D.W. Jones and S.A. Jones, his wife, and present to this court their petition asking leave to adopt Mary Ellen Jenner, who is ten years of age, and to change her name to Mary Ellen Jones; and it satisfactorily appearing to the court that said Mary Ellen Jenner is the daughter of Sylvester H. Jenner and Emma G. Jenner, now Emma G. Charlesworth; that said Emma G. Jenner was divorced from said Sylvester H. Jenner in the state of California, and that Sylvester H. Jenner is still a widower of said state; that in the decree of divorce aforesaid the care and custody of said Mary Ellen Jenner was awarded by the court to her mother, the said Emma G. Jenner, now Emma G. Charlesworth; and it further appearing that the written consent of the said Emma G. Jenner, now Emma G. Charlesworth, to the said adoption and change of name has been filed with the petition aforesaid to this court, and that the said D.W. Jones and Sarah A. Jones are of sufficient ability to bring up said child, and to furnish her with sufficient care and attention and education, and that it is fit and proper, and for the best interest of said child, that said adoption should take place,--it is therefore ordered by the court that from and after this date the said Mary Ellen Jenner shall be, to all intents and purposes, the child of said petitioners, D.W. Jones and Sarah A. Jones, and that the name be changed to that of Mary Ellen Jones.

[Signed] "JOHN C. PEEBLES, Judge."

It is further found by the court that at the time of presentation of said petition and consent, and the rendition of said decree of adoption, the father of said plaintiff was living, but that no notice whatever was given to him of the filing of said petition or consent, or of said proceedings thereon, prior to the rendition of said decree, nor was any appearance for or on behalf of said Jenner ever entered in said county court in said proceeding, or in relation thereto. That about three years after the rendition of said decree said plaintiff informed her father that she had been adopted by said D.W Jones and his wife, the defendant herein, and her father approved thereof. That no one has ever appealed from the said decree of said county court. That, after said decree was rendered, Jones and the defendant took charge of the plaintiff, and that she lived with them for about six years, and was during said time treated by Jones and wife as their child. There were also other findings of fact, but they present no question of law for our consideration on this appeal.

The court found, as conclusions of law: "First, that the decree of adoption mentioned in and set out in my sixth finding of fact was and is binding and conclusive upon Emma G. Charlesworth, and upon Sarah A. Jones, her successor in interest; second, that the plaintiff is the owner and entitled to the possession of one undivided one-half (subject to the defendant's dower interest therein) of the real property described in her complaint; third, that the plaintiff is entitled to a judgment for the possession of said real property, and for one dollar damages, and for her costs and disbursements. From this judgment the defendant has appealed to this court.

1. The sole question to be determined is the validity of the decree of the county court of Marion county, allowing D.W. Jones and wife, the present defendant, to adopt the plaintiff as their child. If that decree is valid, then the judgment of the court below is right, and ought to be affirmed; if otherwise it must be reversed. The act of adopting a child is not of common-law origin, but was taken from the civil law, and introduced here by statute. The provisions on the subject are found in several sections of Hill's Code. Section 2937 provides who may adopt a child, residence of...