Morris v. Dooley

• Decision Date: 27 October 1894
• Citation: 28 S.W. 30,59 Ark. 483
• Parties: MORRIS v. DOOLEY
• Court: Arkansas Supreme Court

28 S.W. 30

59 Ark. 483

MORRIS v. DOOLEY

Supreme Court of Arkansas

October 27, 1894

Appeal from Phillips Circuit Court GRANT GREEN, JR., Judge.

Judgment reversed.

Stephenson & Trieber for appellant.

1. An order of adoption of a child made by the probate court, when the record fails to show the residence of the child, is void when collaterally attacked. 2 Wall. 328; 18 id. 371; 51 Ark 35; 54 id. 643; Black on Judg. sec. 279; Freem. on Judg. sec 123; 12 Am. & Eng. Enc. Law, 276. The residence of the child was jurisdictional, under the act. Acts 1885, p. 32. 17 Ore 204; 85 Cal. 203; 53 Io. 146; 83 Ala. 528; 46 N.Y. 236; 33 Neb. 509; 141 Ill. 140; 8 Ark. 318.

2. Evidence dehors the record is not admissible to show jurisdiction. 51 Ark. 34; 55 id. 221; 10 F. 891; 55 id. 32; 34 F. 701; 36 Mich. 97; 28 F. 440; 6 N.Y. 176; 57 Ill. 348; 15 Cal. 296; 80 Mich. 367; 37 Miss. 17; 9 Wheat. 541; 1 Mich. 19; 11 Heisk. (Tenn.) 310; 10 R. I. 270; Cowper, 36; 12 Am. & Eng. Enc. Law, p. 148; 28 Grat. 879; 11 So. 657.

McCulloch & McCulloch for appellee.

1. Probate courts are courts of superior jurisdiction, and all presumptions are in favor of the propriety of their action. 52 Ark. 341; 46 id. 373; 44 id. 267; 31 id. 74; 19 id. 499; 11 id. 519; Black, Judg. sec. 284. The probate court was not acting outside of its general jurisdiction and in pursuance "of special and summary powers wholly derived from statute, not according to the course of the common law." It had jurisdiction of infants.

2. Judgments of superior courts exercising powers especially conferred and not within their general jurisdiction, in a summary manner not according to the course of the common law, stand upon the same footing as judgments of inferior courts, and when the record is silent, the jurisdictional fact may be shown by proof aliunde. Black on Judg. secs. 282 and 279; 12 Am. & Eng. Enc. Law, p. 148n.; 55 Ark. 281; Ib. 30; 46 id. 153; 34 Cal. 321; 51 N.Y. 378; 6 Barb. 625; 27 Miss. 209; 20 Am. St. Rep. 521; 20 id. 113-114; 2 Col. 85; 12 id. 352; 51 Tex. 603; 65 Mo. 250; 77 Tex. 615; 21 S.W. 1088; 101 Mo. 429; 91 id. 429; 105 id. 472; 24 Ga. 245; 15 R. I. 553.

HUGHES, J. RIDDICK, J., dissenting. Bunn, C. J., concurred in the dissenting opinion.

OPINION

HUGHES, J.

This is an action in ejectment by appellant, claiming lands described in her complaint as heir at law of Mark A. Dooley. The lands were also claimed by Mary E. Dooley, as the adopted heir of said Mark A. Dooley, and her right to the land depends upon the validity of the proceedings for her adoption in the Phillips county probate court.

The act of February 25, 1885, under which these proceedings were had, provides:

"Sec. 1. That any person desirous of adopting any child may file his petition therefor in the probate court, in the county where such child resides.

"Sec. 2. Such petition shall specify, first, the name of such petitioner; second, the name of such child, its age, whether it has any property, and, if so, how much; third, whether such child has father or mother living, and if so, where they reside. Such petition shall be verified by the oath or affirmation of such petitioner."

The judgment or order of adoption of the probate court is as follows: "Comes M. A. Dooley, and files and presents his petition, duly verified by oath, praying for the adoption of Mary E. Parsons, a child seven years of age, and it appearing that said petition specifies, as required by law, the name of the petitioner, the name and age of said child, and that said child has no property and no parents living, and the court, deeming it for the best interests of the child, grants the prayer of the petition, and enters an order of adoption." It then proceeds: "And it appearing from the evidence introduced and being within the recollection and knowledge of the judge (who was then, as now, judge of the court) that judgment was duly made on the first day of the February term, 180, being February 17, 180, but erroneously omitted from the record, on motion of the guardian of the child (Dooley's administrator and Sarah Morris being present and resisting this motion), ordered by the court that said judgment be entered of record as of the day and date now for then."

This order was based on the following petition by Dooley to said court:

"Phillips Probate Court: Your petitioner, Mark A. Dooley, would most respectfully represent that he is desirous of adopting as his heir Mary Ellen Parsons, who is an orphan, seven years of age; that she has no father nor mother living, nor property of any kind; that he prays the court to make an order permitting him to adopt said child. Mark A. Dooley. Sworn to before me this 17th day of February, 180. J. C. Rembert, County Clerk." Indorsed: "Filed this day, April 11th, 180. J. C. Rembert, County Clerk."

It will be observed that neither the order nor the petition states that Mary E. Parsons was a resident of Phillips county at the time when the petition was filed and the order of adoption was made.

The circuit court, which tried the cause, was asked to make the following declaration of law: "Unless a record of a judgment of adoption by a probate court, under the act of 1885 of this State, shows that the minor sought to be adopted by said judgment was at that time a resident of the county for which said probate court was held, it is void, and parol evidence to establish that fact is not admissible in an action wherein such judgment is collaterally attacked"--which was refused; and the court made the following declaration of law: "Where the record of a court of superior jurisdiction, proceeding in the exercise of a jurisdiction specially conferred by statute, in a summary manner, not according to the course of common law proceedings, fails to show on its face a fact essential to its jurisdiction, no presumption will be indulged in favor of the judgment of the court in such proceedings as to jurisdiction; but, in a collateral attack upon such judgment, proof aliunde is admissible to establish such jurisdictional fact when such proof does not contradict the record, and when the statute conferring such jurisdiction does not expressly require such fact to appear upon the face of the record, and where the record of a judgment of adoption of a child as an heir, under act approved February 25, 1885, rendered by a probate court, fails to state the place of residence of such child, this fact may, in a collateral attack upon such judgment, be established by proof dehors the record, to sustain such judgment, when such proof does not contradict the record." Exceptions were saved to the court's action in each instance, and the case comes here upon appeal.

The proceeding to adopt a child as an heir was unknown to the common law, and in this State exists only as a special statutory proceeding. Prior to the passage of the act of February 25, 1885, authorizing such proceedings (Acts of 1885, p. 32), the probate courts possessed no such powers, and could exercise no such jurisdiction, as it conferred. The jurisdiction was conferred by a special statute. Mr. Black, in his work on Judgments, says: "It is well settled that a judgment in a summary proceeding must show upon its face everything that is necessary to sustain the jurisdiction of the court rendering it." Sec. 280. The rule seems to be, especially in this State, as settled by this court in Hindman v. O'Connor, 54 Ark. 627, 16 S.W. 1052, that "where the jurisdiction is conferred on a court by special statute, and which is to be exercised in a special, and often summary, manner, the judgment can only be supported by a record which shows jurisdiction, and no presumptions as to its jurisdiction will be indulged." Harvey v. Tyler, 69 U.S. 328, 2 Wall. 328, 17 L.Ed. 871; Galpin v. Page, 85 U.S. 350, 18 Wall. 350, 21 L.Ed. 959; Gibney v. Crawford, 51 Ark. 34, 9 S.W. 309; Hindman v. O'Connor, 54 Ark. 627, 16 S.W. 1052; Black on Judgments, sec. 279; Freeman on Judgments, sec. 123; 12 Am. & Eng. Enc. of Law, 276 et seq.

But it is contended that only those facts which the statute requires to be set out in the petition need to be made to appear in the record; but we hold, on the contrary, that in a proceeding of this kind, under a special statute, and not according to the course of the common law, the court in which the proceeding is had, quoad hoc, must be considered as an inferior court, and that, unless all jurisdictional facts appear in the record itself, the judgment in the proceeding will be void upon collateral attack. In Henning v. Planters' Ins. Co. 28 F. 440, the court said: "Nor can the want of such averment or showing be supplied by proof aliunde the record, offered at the trial of the subsequent suit, predicated on the alleged judgment. The defects of the record cannot be so pieced or patched up by parol." "Jurisdictional facts cannot rest in parol, to be proved in one case and, perhaps, disproved in another." Judge Cooley, in Montgomery v. Merrill, 36 Mich. 97. There is nothing in Railway Co. v. Lindsay, 55 Ark. 281, that militates against this doctrine. There it is held that the judgment of the justice of the peace could be supported by parol, as, on appeal to the circuit court, the cause was to be tried de novo; and the statement filed in lieu of the complaint was amendable in the circuit court, as well as in the magistrate's court, and would be treated as amended to conform to the evidence, which had been heard without objection.

The Court of Appeals of Virginia, upon a full review of the recent decisions, in Pulaski County v. Stewart, 69 Va. 872, 28 Gratt. 872, determined that there might be extracted from them "the following general legal propositions of universal application:

"1. Where a court of general jurisdiction acts within...