Keal v. Rhydderck

• Decision Date: 09 June 1925
• Docket Number: No. 16486.,16486.
• Citation: 317 Ill. 231,148 N.E. 53
• Parties: KEAL et al. v. RHYDDERCK et al.
• Court: Illinois Supreme Court

317 Ill. 231

148 N.E. 53

KEAL et al.

v.RHYDDERCK et al.

No. 16486.

Supreme Court of Illinois.

April 24, 1925.

Rehearing Denied June 9, 1925.

Error to Circuit Court, Douglas County; Franklin H. Boggs, Judge.

Bill of partition by Frederick Harry Keal and others against Thomas John Rhydderck and others. Decree for defendants, and complainants bring error.

Reversed and remanded.

Farmer, Stone, and Heard, JJ., dissenting.W. W. Reeves, S. S. Du Hamel, and P. M. Moore, all of Tuscola, and C. H. Swick, of Champaign, for plaintiffs in error.

John H. Chadwick, of Tuscola, guardian ad litem, for defendants in error.

THOMPSON, J.

The defendant in error Thomas John Rhydderck (now known as Thomas Ervin Keal) was born October 27, 1909. In February, 1910, his mother was adjudged insane and committed to the Kankakee State Hospital, and Thomas was placed by his father in the care of the Illinois Children's Home and Aid Society. In August, 1910, the society delivered Thomas to James W. and Ruth B. Keal, husband and wife, of Tuscola. On March 1, 1916, they filed in the county court of Douglas county a petition to adopt the child. The petition stated the name, age, sex, and residence of the child, the name of the mother and that she was insane and confined in the Kankakee State Hospital, the name of the father and that his residence was unknown, and that the child had no legal guardian. The father and mother of the child was made defendants to the petition, and summons was issued commanding them to appear March 27, 1916, and answer the petition. Summons was served upon the mother, Ellen R. Rhydderck, March 4, 1916, by the sheriff of Kankakee county. The sheriff of Douglas county made a return on the summons for the father, David Rhydderck, that he could not be found in his county. Thereupon the county clerk caused to be published in the Tuscola Journal, a weekly newspaper, a notice to David Rhydderck and others stating that the petition to adopt Thomas John Rhydderck was filed, and containing this warning:

‘Now unless you appear within 20 days after the date of this notice, and show cause against such application, the petition shall be taken as confessed and a decree of adoption entered.’

This notice was dated March 1, 1916, and was published on the second, ninth and sixteenth days of the same month. March 27, a guardian ad litem appointed for Ellen R. Rhydderck filed a formal answer to the petition, and the petitioners filed a formal replication thereto. David Rhydderck was defaulted. After hearing evidence the court entered its decree finding that it had jurisdiction of the subject-matter and of the parties; that the mother of the child was insane and confined in the Kankakee State Hospital; that the residence of the father of the child was unknown; that the child was in the custody of James W. and Ruth B. Keal, husband and wife, who were fit and proper persons and of sufficient ability to furnish nurture and education for the child; that said persons desired to adopt the child, and decreeing the child to be their adopted child and changing his name to Thomas Ervin Keal. August 6, 1922, James W. Keal was killed in an automobile accident. He died intestate, seized of farm lands located in Douglas county. In addition to the child, Thomas, living in his home at the time of his death, Keal left surviving him his widow, Ruth B. Keal, his sisters, Mae Osborn, Cora Cox, and Gertrude Shaffer, his brothers, Frederick and George, a half-brother, Earl, and two nieces, daughters of a deceased sister. There was filed in the circuit court of Douglas county a bill for the partition of the real estate of which Keal died seized, alleging that the adoption proceedings were void, and that Thomas J. Rhyderck is not the adopted son of James W. and Ruth B. Keal, and praying that the lands be partitioned among the widow and the brothers and sisters of deceased. A decree was entered denying the prayer of the bill, and this writ of error is prosecuted to review that decree.

[1][2] Where the parents of a child are living and there has been no proceeding in court depriving them of the custody of their child, there can be no valid decree of adoption entered unless a verified petition be filed in the circuit or county court of the county in which the person or persons seeking to adopt the child reside or where the child is found, stating (1) the name, sex, age, and residence of the child; (2) the name and residence of the person having the custody of the child: (3) the name and residence of the parents of the child; (4) if the name and residence of any of such persons are not known, the fact that they are unknown; and (5) one or more causes or conditions prescribed by the statute as prerequisite for granting of the decree. Where, as in this case, both parents are living and have not been deprived of the custody of the child, and the child is under 14 years of age, no valid decree of adoption can be entered until the petition states and the court finds (1) that the parents consent to the adoption, or (2) that one parent consents and the other is unfit to have the custody of the child, or (3) that both parents are unfit, the grounds of unfitness being ( a) depravity, ( b) open and notorious adultery or fornication, ( c) habitual drunkenness for the space of one year prior to the filing of the petition, ( d) extreme and repeated cruelty to the child, ( e) abandonment of the child, or ( f) desertion of the child for more than six months next preceding the filing of the petition. The parents must be made defendants to the petition by name and must be notified of the proceedings by summons if residents of the state, the summons to be made returnable at any time within 20 days after its date, or if nonresidents or their residence be unknown, by publication once in some newspaper of general circulation published in the county. If service be by publication, the notice must bear the date of publication and must notify the defendant that he must answer within 20 days after such date.

[3][4][5] The right to adopt a child and the right of a person to be adopted as the child of another was unknown to the common law. It was taken from the civil law and introduced into this country by statute. The adoption proceeding being statutory, the validity of a decree of adoption depends upon the compliance with every essential requirement of the statute authorizing it. In re Sharon's Estate, 179 Cal. 447, 177 P. 283. Being in derogation of the common law, the statute conferring the right of adoption must be strictly construed. Watts v. Dull, 184 Ill. 86, 56 N. E. 303,75 Am. St. Rep. 141;Keegan v. Geraghty, 101 Ill. 26;Vaughan v. Hubbard, 38 Idaho, 451, 221 P. 1107. Our statute having provided specifically the means by which one sustaining no blood relation to an intestate may inherit his property, the rights of inheritance must be acquired in that manner and can be acquired in no other way. Shearer v. Weaver, 56 Iowa, 578, 9 N. W. 907. In Ex parte Clark, 87 Cal. 638, 25 P. 967, it is said:

‘A child by adoption cannot inherit from the adopting parent unless the act of adoption has been done in strict accordance with the statute. No matter how persuasive may be the equities of the child's case, or how clear the intention of all parties, it must appear that the statutory conditions have been strictly performed, otherwise the relation never existed, and the right to inherit never was acquired. The right of adoption is purely statutory. It was unknown to the common law, and as the right when acquired under our statute operates as a permanent transfer of the natural rights of the parent, it is repugnant to the principles of the common law, and one who claims that such a change has occurred must show that every requirement of the statute has been strictly complied with. It cannot be said that one condition is more important than another.’

[6][7][8][9][10] The attack made on the proceedings to adopt the child being collateral, the only inquiry proper to be made is whether the county court had jurisdiction to enter the decree. Before the decree can have vitality the court must have jurisdiction of the subject-matter and of the person. Rabbitt v. Weber & Co., 297 Ill. 491, 130 N. E. 787. Where a court is exercising a special statutory jurisdiction, the record must show upon its face that the case is one where the court has authority to act. Jurisdiction in such cases is never presumed, and if it does not appear the judgment will be void and subject to collateral attack. Rice v. Travis, 216 Ill. 249, 74 N. E. 801;Payson v. People, 175 Ill. 267, 51 N. E. 588;Haywood v. Collins, 60 Ill. 328. Whatever the rank of the court exercising a special statutory jurisdiction, it is governed by the same rules as courts of limited jurisdiction. Calkins v. Calkins, 229 Ill. 68, 82 N. E. 242;Chicago & Northwestern Railway Co. v. Galt, 133 Ill. 657, 23 N. E. 425,24 N. E. 674;Johnson v. Von Kettler, 84 Ill. 315. In Kennedy v. Borah, 226 Ill. 243, 80 N. E. 767, we said:

‘The jurisdiction of county courts to entertain a petition for the adoption of a child and to declare such child to be the adopted child of the petitioner and capable of inheriting his or her estate is a special statutory one unknown to the common law, and falls within the rule that nothing is presumed to be within the jurisdiction of the court which does not appear to be within the same.’

[11][12] In order to give the court jurisdiction of the subject-matter it was necessary that a petition conforming to the requirements of the statute be filed. Kennedy v. Borah, supra; Watts v. Dull, supra; Taber v. Douglass, 101 Me. 363, 64 Atl. 653. The petition filed in this case did not state that the parents, or either of them, consented to the adoption of their child by the petitioners, or that the parents, or either of them, was unfit to have the custody of their child for any of the reasons stated in section 3 of the Adoption Act...