Hindi, In re, 5231

• Decision Date: 18 October 1950
• Docket Number: No. 5231,5231
• Citation: 222 P.2d 991,71 Ariz. 17
• Parties: In re HINDI. HINDI v. BAILON.
• Court: Arizona Supreme Court

Page 991

222 P.2d 991

71 Ariz. 17

In re HINDI.

HINDI v. BAILON.

No. 5231.

Supreme Court of Arizona.

Oct. 18, 1950.

W. E. Ferguson, of Holbrook, for appellant.

Anderson & Smith, of Safford, for appellee.

STANFORD, Justice.

This is an appeal from a decree of the Superior Court, establishing the identity, birthright and parentage of Agatha Lavern Bailon Hindi. The petitioner is the mother of the child involved, and she alleges that the child was born December 16, 1946, in Vaughn, New Mexico, and that Shafie Hindi, the appellant, is the father of the child.

The facts further show that both mother and child reside in Graham County Arizona, and have so resided for the past year, and that Eva Bailon is the duly appointed and acting guardian ad litem of her child. Also that Shafie Hindi is a resident of New Mexico.

The order of the court fixing time for hearing the petition contains this statement: '* * * that said Shafie Hindi be served personally with a copy of this order together with a copy of the petition filed therein at least sixty days prior to said hearing.'

Said order was dated October 4, 1948, and the return of the officer showing service, is as follows:

'I hereby certify that I received the attached order on the 2nd day of October, 1948, and personally served the same on the 2nd day of November, 1948, upon Shafie Hindi, by delivering to him personally in the County of Torrance, State of New Mexico, a copy of said order to which was attached a copy of the application for establishing the identity, birthright and parentage of Agatha Lavern Hindi.

'Dated this 2nd day of November, A. D. 1948.'

Appellant entered a 'special' appearance for the purpose of contesting jurisdiction of the court and thereupon made a motion to dismiss. This court takes judicial notice of the fact that under the new Rules of Civil Procedure, there is no longer any distinction made between a 'special' and a 'general' appearance, 2 Moore's Federal Practice, 2d Ed., 2260, and the appearance here entered by appellant is to be considered the same as any other appearance. The motion to dismiss, based on an alleged lack of jurisdiction, was however the sum total of the pleadings entered by appellant. This motion being supported by affidavits of both appellant and his father, was in effect a speaking motion and we find nowhere in the record that the new facts included therein were in any way contested by appellee. This motion was subsequently denied.

From the decree of the trial court adjudging Shafie Hindi to be the father of Agatha Lavern Bailon Hindi, this appeal was taken.

Appellant's assignments of error go to lakc of jurisdiction of the trial court over Shafie Hindi.

Two sections of the Arizona Code are involved here. They are as follows:

27-403, A.C.A.1939: 'Whenever any person desires to establish his identity or fix his birthright and parentage or both, he may file his application in the superior court of the county of his residence, setting forth his reasons for desiring to establish his identity, birthright or parentage, and the court may, after the hearing of such application, enter judgment establishing the identity, or the birthright and parentage, or both, of such person. The guardian or next friend of a minor may file such application in the county of the minor's residence, or if the minor be sixteen (16) years of age or over he may file his own application, and the court may hear the same and enter judgment thereon as in the case of other persons.'

27-404, A.C.A.1939: 'Upon the filing of such application, if the court deem it proper that notice be given of the hearing of such application it may order that such notice be given by publication or by service upon the parties interested. * * *'

Much has been said on both sides concerning the type of action brought under these sections. We think that the contention of the appellee that this is an action 'in rem', the child being the 'rem', is hardly tenable. See. 27-403, supra, under which this action was brought, provides for the bringing of the action by the person who 'desires to establish his identity or fix his birthright and parentage or both', or in the event that such person be under the age of sixteen, such application may be made by his guardian or next friend which would be in his behalf. We find it impossible to sustain the argument that the action is one 'in rem', as there is nothing which appellant owns or in which he had any interest at the commencement of the action.

The American Law Institute, Restatement of Conflicts, Sec. 77, states concisely the bases of jurisdiction over individuals 'Section 77. Bases of Jurisdiction.

'(1) The exercise of jurisdiction by a state through its Court over an individual may be based upon any of the following circumstances:

'(a) The individual is personally present within the state;

'(b) He has his domicil within the state;

'(c) He is a...