Morris v. Pendergrass' Adm'R.

• Decision Date: 27 October 1894
• Citation: 28 S.W. 30
• Parties: MORRIS v. PENDERGRASS' ADM'R et al.<SMALL><SUP>1</SUP></SMALL>
• Court: Arkansas Supreme Court

28 S.W. 30

MORRIS v. PENDERGRASS' ADM'R et al.¹

Supreme Court of Arkansas.

October 27, 1894.

Appeal from circuit court, Phillips county; Grant Green, Jr., Judge.

Action in ejectment by Sarah Ann Morris against Lee Pendergrass' administrator and Mary E. Parsons Dooley. Judgment was rendered in favor of defendants, and plaintiff appeals. Reversed.

Stephenson & Trieber, for appellant. McCulloch & McCulloch, for appellee Mary E. Dooley.

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 procedings for her adoption in the Phillips county probate court.

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

"Section 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," etc.

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 7 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 1st day of the February term, 1890, being February 17, 1890, 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 show, 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 order permitting him to adopt said child. Mark A. Dooley. Sworn to before me, this 17th day of February, 1890. J. C. Rembert, County Clerk." Indorsed: "Filed this day, April 11th, 1890. 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: "(1) 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: "(1) 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 1885, p. 32), the probate c...