Mair v. Board of Admin. of N.D. (In re Mair)
| Decision Date | 22 July 1931 |
| Docket Number | No. 5916.,5916. |
| Citation | 237 N.W. 756,61 N.D. 256 |
| Parties | In re MAIR. MAIR et ux. v. BOARD OF ADMINISTRATION OF NORTH DAKOTA (JACKMAN et al., Interveners). |
| Court | North Dakota Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
The Supreme Court cannot entertain an appeal from the action of the county court with increased jurisdiction permitting the adoption of a minor, as there is no provision made for such appeal.
Appeal from Ward County Court; Wm. Murray, Judge.
Petition by David E. Mair and wife for leave to adopt Janet Florence Mair, also known as Janet Mair, a minor, opposed by the Board of Administration of the State of North Dakota. After a decree permitting adoption, Amanda Jackman and others filed a petition for leave to intervene, and made application to set aside the decree of adoption already entered. From orders refusing to vacate the decree of adoption and denying the petition to intervene, interveners appeal.
Appeal dismissed.Nestos, Herigstad & Stenersen, of Minot, and Clayton Parks, of St. Paul, Minn., for appellants.
L. J. Palda, Jr., C. E. Brace, and Robt. W. Palda, all of Minot, for respondents.
In May, 1930, two of the interveners, C. J. Martinson and Alma I. Martinson, his wife, applied to the district court of Hennepin county, Minn., for permission to adopt a minor, Janet Florence Mair.
On June 9, 1930, the petitioners, David E. Mair and Pearl Lou Mair his wife, applied to the county court with increased jurisdiction of Ward county for leave to adopt the child, and on June 9, 1930, that court entered a decree permitting the adoption.
In July, 1930, while the proceedings were pending in Minnesota, the interveners applied to the county court of Ward county to set aside its decree already entered, which application was denied. This application was renewed in December, 1930, after the district court in Minnesota granted permission to adopt, and the application was again denied.
From the orders of the county court of Ward county refusing to vacate this decree and denying the petition to intervene, the interveners appeal to this court.
Both parties treat this matter as if an appeal could be taken to this court in such matters. If it were merely a matter of procedure, we might overlook a question which has not been raised by the respondents, but section 86 of the Constitution of the state says: “The supreme court, except as otherwise provided in this constitution, shall have appellate jurisdiction only, which shall be co-extensive with the state and shall have a general superintending control over all inferior courts under such regulations and limitations as may be prescribed by law.”
Unless, therefore, some method be prescribedby law whereby this court may exercise “general superintending control” or some method of appeal be prescribed, this court is not in position to assume jurisdiction.
Under the provisions of section 4446 of the Supplement any person desiring to adopt a minor child “may petition the * * * county court having increased jurisdiction, in the county in which he is a resident, for leave to adopt” such minor child. Nowhere in the chapter of the Civil Code dealing with adoption is there any provision made for appeal to any court from the action of the court in granting or refusing to grant such adoption. Only a county court with increased jurisdiction, or a district court, may entertain such petitions. Section 8960 of the Compiled Laws 1913 deals with appeals from the county court with increased jurisdiction, and this section says: “In all actions brought under the provisions of this chapter an appeal may be taken to the supreme court of the state in the same manner and pursuant to the same rules as appeals from the district court.”
There is no provision therein whatever for appeal in a proceeding like that for adoption.
The county court, as generally constituted, has no jurisdiction to entertain a petition for leave to adopt. Article 9 of chapter 3 of the Probate Code, being sections 8599 to 8624 of the Compiled Laws 1913 makes provision for appeals from the county court in probate matters. It is clear such sections are limited to appeals in probate matters only. The article is dealing with the power of the county court in the settlement of estates and guardianship; and if by any stretch of imagination it can be said to include adoption matters it will be noticed that this form of appeal is limited to appeals to the district court. See section 8599.
It is true that in this state application for leave to adopt is made to the court and not to a judge. It is, therefore, a judicial proceeding. See Abney et al. v. De Loach et al., 84 Ala. 393, 4 So. 757, 759; 1 C. J. 1383. But, though a judicial proceeding, this court cannot entertain an appeal unless provision be made for appeal. Where there is no provision for appeal then appeal does not lie. Torgerson v. M., St. P. & S. S. M. Ry. Co., 51 N. D. 745, 200 N. W. 1013; Myrick v. McCabe, 5 N. D. 422, 67 N. W. 143;Whitney v. Ritz, 24 N. D. 576, 140 N. W. 676;Meyers v. Meyers, 32 Ill. App. 189;Appeal of Lewis (Pa.) 10 A. 126.
In Vandermis v. Gilbert, 10 Pa. Super. Ct. 570, it is said: “No provision is made for an appeal, in proceedings for the adoption * * * and the only writ by which a review can be had is a writ of certiorari” in that State. In Dixon v. Haslett, 232 Ill. App. 152, it is held that a “writ of error will not lie to review the judgment of the county court in adoption proceedings where no property rights or rights of personal liberty are involved, adoption proceedings being purely statutory and there being no statutory provision for review thereof by appeal or writ of error.” See, also, Freeland v. Weed, 75 Ind. App. 273, 128 N. E. 656;In re Young, 259 Pa. 573, 103 A. 344.
In re Hughes, 88 Okl. 257, 213 P. 79, says: “There is no specific statute providing for appeals...
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In re Estate of Rusch
...by a county court is given the right to appeal to the district court of the same county. But see, as to adoption proceedings, Re Mair, 61 N.D. 256, 237 N.W. 756. All from decrees of county courts in the exercise of their probate jurisdiction must be taken under this statute to the district ......
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Rusch v. N. & Dakota Trust Co. (In re Rusch's Estate)
...by a county court is given the right to appeal to the district court of the same county. But see, as to adoption proceedings, In re Mair (N. D.) 237 N. W. 756. All appeals from decrees of county courts in the exercise of their probate jurisdiction must be taken under this statute to the dis......
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Nelson v. Ecklund
...proceedings. It is true the statute makes no provision for notice; but adoption proceedings are judicial in their nature (Re Mair, 61 N.D. 256, 260, 237 N.W. 756, 757) there can be no judicial hearing of any kind without notice to the parties affected. That our statute requires notice in a ......