Lyons v. Goodman

• Decision Date: 28 January 1955
• Docket Number: No. 3945,3945
• Parties: Mrs. Alice LYONS et al. v. Ruby Lee GOODMAN.
• Court: Court of Appeal of Louisiana — District of US

Page 424

78 So.2d 424

Mrs. Alice LYONS et al. v. Ruby Lee GOODMAN.

No. 3945.

Court of Appeal of Louisiana, First Circuit.

Jan. 28, 1955.

Rehearing Denied March 28, 1955.

Moss & Graham, Lake Charles, for appellants.

John A. Patin, Lake Charles, for appellee.

ELLIS, Judge.

This is an action to establish title to real estate instituted by the collateral heirs of Severinus Goodman, Jr., deceased, against Mrs. Ruby Lee Goodman, divorced wife of Joseph L. Camalo, who contends that she is the legally adopted daughter of said decedent. The property involved is situated in Calcasieu Parish, Louisiana, and is described as follows, to wit:

The East twenty five (25) acres, more or less, of the Southeast Quarter of the Northeast Quarter (SE 1/4 of NE 1/4) of Section Seven (7); and the Southwest Quarter of the Northwest Quarter (SW 1/4 of NW 1/4) less the Southeast Seven and one half (7 1/2) acres thereof, of Section Eight (8), Township Ten (10) South Range Nine (9) West, Louisiana Meridian.

Plaintiffs alleged that Severinus Goodman, Jr., left no ascendants nor descendants and that upon his death his interest in the said property was inherited by petitioners as the surviving stepsisters and brothers and sisters.

It is further alleged that the defendant Ruby Lee Goodman was not the child of Severinus Goodman, Jr., and was never adopted by him and is not related to him in any manner. The decision of the case turns upon this allegation. If the defendant Ruby Lee Goodman was legally adopted judgment should be against the plaintiffs and in her favor as was rendered by the Court below. From this judgment the plaintiffs have appealed and the defendant has filed a motion to dismiss the appeal taken by plaintiffs-appellants on the ground that this Court is without jurisdiction as this case involves a matter of adoption and under the provisions of Section 10 and 29 of Article 7 of the Louisiana Constitution of 1921 appellate jurisdiction is vested in the Supreme Court of Louisiana.

As to the motion to dismiss, it should be overruled for this proceeding was instituted by the plaintiffs under the provisions of LSA-R.S. 13:5062 which provides that 'this action shall be known as the action to establish title to real estate.'

The question before the court was whether or not the defendant Ruby Lee Goodman owned 11/60th interest in the tract of land involved in the suit. If she was the legally adopted child of Severinus Goodman, Jr., she owned such interest, and if not she had no interest. It is argued by counsel for plaintiffs in their brief: 'The question of whether she was adopted was only incidental to the question as to who owned the land and was only a matter that must be settled in order to decide who owns the land.'

Our Supreme Court in the case of Smith v. Shehee, 175 La. 394, 396, 143 So. 338, in deciding the question submitted to it by the Court of Appeal as to whether the latter was right in passing upon the title of the parties to the suit when that question involved the legitimacy of the parties, stated:

'* * * The jurisdiction of the court was determined properly by the value of the property in contest, notwithstanding the title to the property depended upon the question of legitimacy of certain heirs. The provision in section 10 of article 7 of the Constitution 1921 giving the Supreme Court 'appellate jurisdiction' of all suits * * * involving * * * the legitimacy, or custody of children, and of matters of adoption and emancipation.' has reference to suits in which one of the matters mentioned is the matter in contest. That provision in the Constitution does not mean that the Supreme Court shall have appellate jurisdiction of every case in which the question of legitimacy of a person arises incidentally, or has to be decided in order to settle the matter in contest. For example, section 10 of Article 7 of the Constitution excludes from the appellate jurisdiction of this court suits for compensation under the Employer's Liability Act, or Workmen's Compensation Law; and it happens often that the legitimacy of a dependent claiming compensation for the death of an employee is questioned by the defendant in such a case.

* * *

* * *

'Our answer to the question propounded by the Court of Appeal is that the court did have jurisdiction to decide the case of Smith v. Rambo, 15 La.App. 448, 131 So. 524.'

There is no contention that the value of the land in dispute is in excess of $2,000, and under the above authority as applied to the facts of this case, the motion to dismiss is overruled.

On the trial of the case the defendant tendered evidence that she had been adopted by Severinus Goodman, Jr., and his wife during the year 1929 in accordance with the provisions of Act 48 of 1924 which amended and re-enacted Act 30 of 1872 and the first section of the 1924 act reads as follows:

'Section 1. That any person above the age of twenty one years shall have the right, by act to be passed before any parish recorder or notary public, to adopt any child under the age of twenty one years; provided, that if such child shall have a parent, or parents or tutor, that the concurrence of such parent or parents, or tutor, shall be obtained and as evidence thereof, shall be required to sign said act; and in the event the said child shall have been abandoned by its father and mother, or by the father in the event the mother shall be dead or by the mother in the event the father shall be dead or unknown, to a charitable institution or in the event of the chartiable institution taking charge, custody and control of a foundling, then, in that event, any authorized representative or officer of the said charitable institution shall have the right to sign the Act of adoption in behalf of the said foundling or abandoned child with the same legal effect as if it had been signed by the parents or tutor of the said child.'

Section 2 of Act 48 of 1924 is the only remaining provision and it merely provides that all laws or parts of laws in conflict therewith are repealed.

Parol evidence was offered in lieu of the formal written instruments, the original and copies of which the defendant contended had been lost or destroyed. To such evidence the plaintiffs objected on several grounds. The evidence was admitted subject to the objections and in a well-written opinion the objections were overruled for the reasons given therein.

Counsel for plaintiffs objected to the parol evidence on the ground that adoption was a status conceived by the Legislature and in order to create such status there must be a strict compliance with the law relative to the adoption, this is the same thing as saying that adoptions could be completed only by written documents in 1929 when the defendant contends she was legally adopted in accordance with the 1924 act. The learned District Judge correctly answered this argument by stating in his written reasons: 'In this case, however, the parol evidence was offered to prove the execution and conditions of a lost document and for that purpose it is admissible.'

Counsel for plaintiffs in this Court has apparently abandoned all other objections to the testimony and now relies only upon his objection to the introduction of parol testimony on the ground above stated and apparently, having been overruled on this point, he contends that on the merits of the case the defendant has not proven the adoption as required by law. In the event that we might be wrong in stating that plaintiff has abandoned his objection to the proof of adoption by parol evidence tending to show the execution and contents of the written act of adoption because the record does not disclose that the loss of such a document had ever been advertised as required by Article 2280 LSA-C.C., we will consider such objection.

The jurisprudence of Louisiana is well settled to the effect that any instrument which has been lost or destroyed may be proved by secondary evidence. The manner of proof varies with the nature or kind of document. If the lost or destroyed instrument is a conventional obligation subject to the provisions of our LSA-Civil Code as appears in Chapter 6 of Title 4 and as defined therein, then it is subject to Articles 2279 and 2280 which are included in Chapter 6 of Title 47 under the label 'Of the Proof of Obligations and of That of Payment.'

In view of the fact that the act of adoption could not be considered a conventional obligation we agree with the statements, reasonings and conclusion of the District Judge in his written reasons for judgment that the provisions of Article 2280 do not apply in a case such as the one presented here. In his written reasons he stated:

'Counsel for plaintiffs further argue that parol evidence tending to show the execution and contents of the written act of adoption should be excluded because the record does not disclose that the loss of such a document has ever been advertised as required by Article 2280 of the Revised Civil Code. The evidence does not show whether the loss of the act of adoption was ever advertised, and the Court concludes that there was no such advertisement. Article 2280 of the Revised Civil Code provides that:

"In every case, where a lost instrument is made the foundation of a suit or defense, it must appear that the loss has been advertised, within a reasonable time, in a public newspaper, and proper means taken to recover the possession of the instrument.'

'This article, however, appears in Chapter 6 of Title IV of the Civil Code, which title is labeled 'Of Conventional Obligations.' Numerous definitions of conventional obligations are contained in Title IV of the Civil Code, and particularly are such definitions contained in Chapter 1 of that title, under the heading of 'General Provisions,' in Chapter 2, labeled 'Of the Requisites to the Formation of a Valid Agreement', and in Chapter 4, entitled 'Of the Different Kinds of Obligations.' It is apparent from the provisions of the articles...