Menees v. Cowgill

• Decision Date: 12 September 1949
• Docket Number: 41282
• Citation: 223 S.W.2d 412,359 Mo. 697
• Parties: Vivian Cowgill Menees, Appellant, v. Lillian Cowgill et al., Respondents
• Court: Missouri Supreme Court

223 S.W.2d 412

359 Mo. 697

Vivian Cowgill Menees, Appellant, v. Lillian Cowgill et al., Respondents

No. 41282

Supreme Court of Missouri

September 12, 1949

Motion for Rehearing or to Transfer to Banc Overruled October 10 1949.

Appeal from Jackson Circuit Court; Hon. Ben Terte, Judge.

Affirmed and modified.

SYLLABUS

Declaratory judgment action to declare plaintiff's status as an adopted child. Plaintiff's adoptive father failed to take the statutory steps to adopt her, although he recognized her as his adopted child. After his death his sister died, leaving property in Iowa. As to the collateral heirs of the sister, plaintiff is denied the status of an adopted child. Such negative status should be declared instead of dismissing plaintiff's petition.

Paul W. Richards and Elmer E. Hall for appellant.

(1) The lex domicilii governs and controls the status of an individual and the status of adoption validly acquired under the law of a state will be recognized and given effect in another state. Rauch v. Metz, 212 S.W. 357; Remmers v. Remmers, 239 S.W. 509; Shick v. Howe, 137 Iowa 249, 114 N.W. 916, 14 L.R.A. (N.S.) 980; Annotation, 154 A.L.R. 1179; 2 C.J.S., Adoption of Children, 401; Waggoner v. Waggoner, 287 Mo. 567, 229 S.W. 1064; 38 C.J., Marriage, 1279; 15 C.J.S., Conflict of Laws, 906; Tremain v. Dyott, 161 Mo.App. 217, 142 S.W. 760; Brotherhood of Railroad Trainmen v. Adams, 222 Mo.App. 689, 5 S.W.2d 96; Buck v. Meyer, 195 Mo.App. 287, 190 S.W. 997; Sec. 871, R.S. 1939. (2) If the status of adoption actually exists under the laws of a foreign state then a child enjoying such status inherits in Iowa (in the sense of having property disposed of to him) as a child actually born in lawful wedlock including inheritance from the collateral kin of the adopting parent. Shick v. Howe, 137 Iowa 249, 114 N.W. 760, 14 L.R.A. (N.S.) 980; Annotation, 154 A.L.R. 1179; Secs. 12016, 12017, 12024 and 12025, Iowa 1939 Code. (3) Adoption of children in Missouri involves a status, which if it exists is an accomplished fact. The fact of adoption arises in three ways in Missouri; First, by decree of juvenile court; Second, through the making and performing a contract of adoption but incomplete as to statutory requirements; and Third, adoption by estoppel arising out of representations to child making it inequitable to deny that child was in fact an adopted child. Dillmann v. Davison, 239 S.W. 505, 328 Mo. 966; Holland v. Martin, 198 S.W.2d 16; Shelp v. Mercantile Trust Co., 322 Mo. 682, 15 S.W.2d 818; Rauch v. Metz, 212 S.W. 357; Remmers v. Remmers, 239 S.W. 509; Carlin v. Bacon, 322 Mo. 435, 16 S.W.2d 46; Holloway v. Jones, 246 S.W. 587. (4) Plaintiff's petition states facts entitling her to a declaration as to her status under the Missouri Declaratory Judgment Act. Sec. 1126, R.S. 1939; Sec. 36, Civil Code of Missouri; 26 Washington University Law Quarterly, p. 484; Anderson, Declaratory Judgments, p. 814. (5) The defendants are proper and necessary parties to the proceedings to have plaintiff's status declared. Sec. 1136, R.S. 1939; Independence Sash, Door & Lbr. Co. v. Bradfield, 153 Mo.App. 527, 134 S.W. 118. (6) The plaintiff's petition discloses that the declaration prayed for would terminate the uncertainty or controversy giving rise to the proceeding. 26 Washington University Law Quarterly, p. 468; Remmers v. Remmers, 239 S.W. 509. (7) Action for a declaratory judgment is the appropriate procedure to obtain the relief plaintiff seeks. Sec. 1126, R.S. 1939; Purcell v. Summers, 126 F.2d 390; Reconstruction Finance Corp. v. Dingwell, 278 N.W. 281, 224 Iowa 1172; State ex rel. Ins. Co. v. Terte, 176 S.W.2d 25, 345 Mo. 95; State v. Shea, 95 Mo. 85, 8 S.W. 409. (8) The judgment as rendered by the trial court was erroneous for the following additional reasons: the court had no jurisdiction, right or authority to attempt to determine the interests of any of the parties in and to the real and personal property located and being administered upon in the State of Iowa; having found the required facts the judgment necessarily should have been for plaintiff, binding on all defendants, decreeing her status as an adopted child since the year 1920; and the judgment as rendered was not responsive to the pleadings and evidence. 34 C.J., Judgments, 508; First Natl. Bank of Corning, Ark., v. Dowdy, 175 Mo.App. 478, 161 S.W. 859; Holland v. Martin, 198 S.W.2d 12; Remmers v. Remmers, 239 S.W. 509; Dillmann v. Davison, 239 S.W. 505, 328 Mo. 966.

Trusty & Pugh and Chas. H. Mayer for all answering respondents.

(1) The defaulting defendants who were not personally served, including the Executor of Mrs. Cochrane's Estate, not being proper parties to this action, were not properly served with process, and since they did not appear or plead, no decree can be rendered which is binding upon them. Hyde, 26 Wash. U.L.Q. 468, 482-3; State ex rel. Clay County Bank v. Waltner, 145 S.W.2d 152; Sec. 9614, R.S. 1939; McIntyre v. Hardesty, 347 Mo. 805, 149 S.W.2d 334; Crawford v. Arends, 351 Mo. 1100, 176 S.W.2d 1; Weber v. Griffiths, 159 S.W.2d 670; Hockaday v. Lynn, 200 Mo. 456, 98 S.W. 585; Rauch v. Metz, 212 S.W. 357; Sec. 1673, R.S. 1909; Norwood v. Norwood, 353 Mo. 548, 183 S.W.2d 118; Moffett v. Commerce Trust Co., 354 Mo. 1098, 193 S.W.2d 588, appeal dismissed, 67 S.Ct. 82, rehearing denied, 67 S.Ct. 184. (2) The court had no power to enter any decree on the cause of action stated against Guy M. Cowgill or any of the defendants herein except Lillian Cowgill. Secs. 9608-9616, R.S. 1939; Bucklin Coal Mining Co. v. Unemployment Compensation Comm., 53 F.Supp. 484; Beach v. Bryan, 155 Mo.App. 33, 133 S.W. 635; Secs. 1127, 1136, R.S. 1939. (3) Assuming that appellant was entitled to a declaration of rights against Lillian Cowgill, this court should not have dismissed the action, but should have decreed that appellant either did or did not have the rights she sought to have declared. Smith v. Pettis County, 345 Mo. 839, 136 S.W.2d 282; Strype v. Lewis, 352 Mo. 1004, 180 S.W.2d 688, 155 A.L.R. 99; Kingston v. St. Louis Union Trust Co., 348 Mo. 448, 154 S.W.2d 39; Secs. 1126, 1127, R.S. 1939; Hyde, 26 Wash. U.L.Q. 468, 486-7, 481, 489; Dyas v. Dyas, 165 S.W.2d 317, transferred 163 S.W.2d 557; City of Joplin v. Jasper County, 349 Mo. 441, 160 S.W.2d 411. (4) The fact that the property claimed by plaintiff as an adopted child and claimed by the defendants as blood kin of Clara Cowgill Cochrane is situated in Iowa did not deprive the court of the jurisdiction to render a declaratory judgment defining and limiting the rights of all the parties who were before it. MacDonald v. Dexter, 234 Ill. 517, 85 N.E. 209; Bailey v. Tully, 242 Wis. 226, 7 N.W.2d 837, 145 A.L.R. 578; Norton v. House of Mercy, 101 F. 382; Jones v. Park, 282 Mo. 610, 222 S.W. 1018; McCune v. Goodwillie, 204 Mo. 306, 102 S.W. 997. An exhaustive note on the subject may be found in 145 A.L.R. 583. 34 C.J., sec. 1611 (4), pp. 1135, 1137, and cases cited under note 37, p. 1137. (5) The appellant does not have the "status" of an adopted child under Missouri law and is not entitled to greater relief than that given her by the decree entered below. 2 Beale's, The Conflict of Laws, p. 713, sec. 142.1, p. 716, sec. 143.1; Hockaday v. Lynn, 200 Mo. 456; Niehaus v. Madden, 348 Mo. 770, 155 S.W.2d 141; Sharkey v. McDermott, 91 Mo. 647, 4 S.W. 107; Sec. 1137, R.S. 1939; State ex rel. United States Fire Ins. Co. v. Terte, 176 S.W.2d 25; Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 57 S.Ct. 461; Reliance Life Ins. Co. v. Burgess, 112 F.2d 234, certiorari denied 61 S.Ct. 137, 311 U.S. 699, rehearing denied 61 S.Ct. 391, 311 U.S. 370; Koenig v. Koenig, 191 S.W.2d 269; Hyde, 26 Wash. U.L.Q. 468, 476; Borchard, "Declaratory Judgments," (2d Ed.) 23, 139; Lynn v. Hockaday, 162 Mo. 111, 61 S.W. 885; Beach v. Bryan, supra; Sarazin v. Union Railroad Co., 153 Mo. 479, 55 S.W. 92; Reinders v. Koppelmann, 68 Mo. 482; Lamb v. Feehan, 276 S.W. 71; Holloway v. Jones, 246 S.W. 587; Fienup v. Stamer, 28 S.W.2d 437; In re Watson's Adoption, 238 Mo.App. 1104, 195 S.W.2d 331; Mutual Life Ins. Co. v. Benton, 34 F.Supp. 859; 2 C.J.S. 368, "Adoption," sec. 1; Genz v. Riddle, 199 Wis. 545, 226 N.W. 957; Healey v. Simpson, 113 Mo. 340, 20 S.W. 881; Teats v. Flanders, 118 Mo. 660, 24 S.W. 125; Novack v. Berger, 133 Mo. 24, 34 S.W. 489; Drake v. Drake, 328 Mo. 966, 43 S.W.2d 556; Weber v. Griffiths, supra; Black's Law Dictionary (3rd Ed.); Barney v. Tourtellotte, 138 Mass. 106; McIntyre v. Hardesty, supra; Sec. 1673, R.S. 1909; Bland v. Buoy, 335 Mo. 967, 74 S.W.2d 612; State ex rel. Bolshaw v. Montgomery, 237 Mo.App. 678, 146 S.W.2d 129; Lindsey v. Patterson, 177 S.W. 826, L.R.A. 1915F, 680; 2 C.J.S. 401; Thompson v. Arnold, 208 Mo.App. 102, 230 S.W. 322; Crawford v. Arends, 351 Mo. 145, 159 S.W.2d 670.

Dalton, C. Bradley and Van Osdol, CC., concur.

OPINION

DALTON

This is an action in equity for a decree of equitable adoption and a declaration of rights under the Declaratory Judgment Act, Art. 14, Chap. 6, R.S. 1939. Plaintiff seeks a decree, binding on each and all of the defendants, declaring her to be the lawfully adopted child of Guy M. Cowgill and Lillian Cowgill, as of May 17, 1920, and establishing that plaintiff is the legal heir of Guy M. Cowgill, deceased. After answers and replies were filed, the cause was disposed of on plaintiff's motion for judgment on the pleadings.

The court found that the Cowgills had in 1920 entered into an agreement to adopt the plaintiff and held that, although the Cowgills had made no attempt to adopt plaintiff, the agreement was binding upon them and they were estopped to deny the adoption. The court further found that plaintiff, not having been lawfully adopted by the Cowgills had no rights or claim against the...