Nelson v. Ecklund

Decision Date31 December 1938
Docket Number6460
Citation283 N.W. 273,68 N.D. 724
CourtNorth Dakota Supreme Court

Syllabus by the Court.

1. An application for a writ of certiorari must be made on affidavit by the party beneficially interested; but the term " party beneficially interested" does not confine the applicant to one formally named as a party in the proceedings to be reviewed. A person may be beneficially interested though he is not technically a party as when his legal rights are invaded by the acts complained of so that the decision affects them even adversely, for he has a right to have his rights protected.

2. Where a decree of adoption adjudges that all legal rights of a parent respecting his minor child have ceased, he is beneficially interested in the proceedings even though not technically a party thereto.

3. Under the provisions of Section 4444 of the Supplement, where the surviving parent of a minor is insane and there is no guardian for the minor, consent to the adoption may be given by the Board of Administration.

4. Even though the statute regulating adoption of minors makes no provision for notice of the proceedings to be given to a parent declared to be insane, nevertheless the rights of such parent can not be determined until he has received notice. Adoption proceedings are judicial in their nature, and in the absence of statutory provision for notice it is the duty of the court to see that adequate notice is given to the alleged insane parent. It is a fundamental principle of justice essential to the rights of every man, that he shall have notice of any judicial proceeding affecting his rights, and the plainest instincts of natural justice require that the natural parent should have notice of the proceedings before his child is taken from him and given to another.

5. This court will review the proceedings in adoption upon the application of the surviving parent of the minor when the decree deprives the parent of all legal rights respecting the child, even though said parent was not made a party to the proceedings and received no notice thereof.

Application by Arthur M. Nelson, opposed by Mabel Myrtle Ecklund, for writ of certiorari to review the action of the District Court of Burleigh County, Hon. Fred Jansonius, Judge, whereby plaintiff's minor daughter was adopted by Mabel Myrtle Ecklund.

Judgment in accordance with opinion.

CHRISTIANSON, C. J., and SATHRE, J., dissenting.

F E. McCurdy, for plaintiff.

Commitment to the state hospital for the insane is not adjudication of either insanity or incompetence. State v. Roberts, 67 N.D. 92, 269 N.W. 913.

George S. Register and Hyland & Foster, for defendant.

The right of a father to the custody of his child is not an absolute, inalienable right, but in all cases is referable and subordinate to the interests and welfare of the child. Nugent v. Powell, 4 Wyo. 173, 33 P. 23, 20 L.R.A. 199. 62 Am. St. Rep. 17.

A statute allowing a child to be adopted without consent or notice to a parent who had abandoned the child is not unconstitutional. Nugent v. Powell, 4 Wyo. 173, 33 P. 23, 20 L.R.A. 199, 62 Am. St. Rep. 17; United States v. Green (C.C.) Fed. Cas. No. 15,256, 3 Mason, 485; Gishwiler v. Dodez, 4 Ohio St. 623; Mercein v. People, 25 Wend. 64.

In adoption proceedings notice to a parent alleged to have abandoned his child is not necessary to the jurisdiction of a judge to determine that question. Parsons v. Parsons, 101 Wis. 76, 77 N.W. 147; Purinton v. Jamrock, 195 Mass. 187, 80 N.E. 802, 18 L.R.A.(N.S.) 926.

A general appearance to contest a judgment on account of irregularities will, if the grounds thereof are not sustained, conclude the parties as to any further questioning of the judgment. Burdette v. Corgan, 26 Kan. 104; Kaw Valley L. Asso. v. Lemke, 40 Kan. 142, 19 P. 337; Fowler v. Continental Casualty Co. 17 N.M. 188; Felts v. Boyer, 73 Or. 833, 144 P. 420; Mayer v. Mayer, 26 Or. 133, 39 P. 1002; Hill v. Personger, 57 Okla. 663, 157 P. 744; 2 Ency. Pl. & Pr. paras. 653-655, 657; Fisk v. Thorpe, 60 Neb. 713, 84 N.W. 79.

Burr, J. Nuessle and Morris JJ., concur. Christianson, Ch. J., and Sathre, J., dissent.


The plaintiff seeks to review the proceedings wherein his minor daughter was adopted by the defendant. The daughter was born in March 1930. The mother of the child died in April 1934 and thereafter, with the consent of the father, the child has been in the custody of the defendant.

The record shows that in January 1933 the plaintiff was adjudged insane by the commissioners of insanity and committed to the State Hospital, discharged in May, recommitted in December, paroled in April of 1935, and finally discharged in March 1936. It is conceded that no guardian of the plaintiff had ever been appointed.

In May 1935 the defendant petitioned the district court for leave to adopt the minor, alleging that the father was insane and had "been judicially established as such by the commissioners of insanity of said Burleigh county."

In accordance with § 4446 of the Supplement, notice of the petition for adoption was given to the board of administration and the board recommended the granting of the petition.

The district court on June 20, 1935 adjudged and decreed "that Arthur M. Nelson, the father of said child, is hereby deprived of all legal rights as respects the said Ardys June Charlotte Nelson, a minor, and said minor is hereby declared and decreed to be free from all obligations as to obedience and maintenance respecting her said natural father Arthur M. Nelson."

The plaintiff was not a party to these proceedings. No notice was served upon him. He did not consent to the adoption; in fact, it is clear from the record he knew nothing of the proceedings until January 1936. On learning of the adoption he sought to vacate the decree, but the district court refused to entertain his motion. In Nelson v. Ecklund, 67 N.D. 140, 270 N.W. 347, the remedy by appeal was held not applicable.

The defendant contends: first, that "Plaintiff, is not a proper party plaintiff herein;" second, that this court has not original jurisdiction in this matter; third, "that the District Court of Burleigh County, North Dakota, had jurisdiction both of the parties and subject-matter in the adoption proceedings involved herein, and that therefore the petition does not set out facts sufficient to warrant the relief prayed for in said petition."

The writ of certiorari is not a writ of right, except in cases where it is made so by statute (People ex rel. Sheridan v. Andrews, 52 N.Y. 445, 448); but it rests in the sound discretion of the court to grant or refuse it, upon the circumstances of the case. Cofman v. Ousterhous, 40 N.D. 390, 168 N.W. 826, 18 A.L.R. 219. Neither does the writ lie where there is an appeal or other speedy and adequate remedy. Schafer v. District Ct. 21 N.D. 476, 131 N.W. 240.

The contention that the plaintiff is not a proper party to these proceedings appears to be based upon the interpretation of § 8446 of the Compiled Laws which provides that the application for writ of certiorari "must be made on affidavit by the party beneficially interested." The defendant contends that if the plaintiff was not a party to the adoption proceedings, he is not a "party beneficially interested" therein and so can not apply for the writ.

In addition, the defendant herein asserts that the district court had jurisdiction over the father and his rights, not only because of the action of the board of administration in giving its consent, but also because, after the decree had been entered, the father made a special appearance, asked that the decree be set aside and he be permitted to intervene and therefore submitted to the jurisdiction of the court. The court took testimony to determine whether he would grant such motion and denied the request, and in Nelson v. Ecklund, 67 N.D. 140, 270 N.W. 347, supra, we held the rights of the plaintiff remained untouched.

The term "party beneficially interested" does not confine the applicant to one formally named as a party in the proceedings to be reviewed. A person may be beneficially interested in the decision of the court though he is not technically a party to the action. One is beneficially interested in a matter when his legal rights are invaded.

In the case at bar the remedy by appeal does not exist and therefore the reason for denying a writ of review does not exist and when the reason for a rule ceases, so should the rule itself. Compiled Laws, § 7244. Startup v. Harmon, 59 Utah 329, 203 P. 637, 640. Such term will not be given a close construction but must be applied liberally to promote the ends of justice. Semones v. Needles, 137 Iowa 177, 114 N.W. 904, 906, 14 L.R.A.(N.S.) 1156, 15 Ann. Cas. 1012 (an action for injunction). Thus, "A party against whom a judgment is sought to be enforced, although not a party to the mandamus, may apply for a writ of certiorari." Clary v. Hoagland, 5 Cal. 476.

Judgment against defendant had been reversed on appeal and plaintiff thereafter obtained a peremptory writ addressed to the clerk of court requiring the latter to issue a writ of restitution pursuant to the judgment obtained but thereafter reversed. Defendant was not a party to the mandamus proceedings, but the court held he was sufficiently interested to entitle him to a writ of certiorari. As stated in Crowell v. Circuit Ct. 50 S.D. 276, 209 N.W. 539, "In exceptional cases it will issue upon the petition of one interested in the subject matter upon which the record acts."

It is not necessary for the applicant to show that the decision sought to be reviewed enhanced his rights increased his property, or was productive of good to him. One...

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