Norris v. Dunn

• Decision Date: 26 October 1931
• Docket Number: No. 178.,178.
• Citation: 43 S.W.2d 77
• Parties: NORRIS et al. v. DUNN et al.
• Court: Arkansas Supreme Court

43 S.W.2d 77

NORRIS et al. v. DUNN et al.

No. 178.

Supreme Court of Arkansas.

October 26, 1931.

Rehearing Denied November 30, 1931.

Appeal from Sebastian Chancery Court; C. M. Wofford, Chancellor.

Action by Fred H. Norris and others against John A. Dunn and others. Decree for defendants, and complainants appeal.

Affirmed.

John D. Arbuckle, of Ft. Smith, for appellants.

Hill, Fitzhugh & Brizzolara, of Ft. Smith, for appellees.

BUTLER, J.

This is an action by the appellant, Capt. Fred H. Norris, to recover custody of a minor child, Thomas Clark Dunn, from his grandmother, Mrs. Mary Dunn, and involves the validity of an adoption proceeding in the county of Cochise in the state of Arizona. Capt. Norris is the stepfather of the minor, who, at the time of the adoption proceedings, was approximately 9½ years old. His mother died on or about the _____ day of October, 1929, and at her request Capt. Norris attempted to adopt the child. The child had no relatives in the state of Arizona, but his grandmother, the appellee, and two uncles were residents of the city of Ft. Smith in this state.

Capt. Norris instituted adoption proceedings in the Arizona court, and on November 7, 1929, an order of adoption was made by that court granting the prayer of the petition for adoption. Some months after, while the child was on its way to school in the town of Douglas in Cochise county, Ariz., he was abducted by an uncle and taken to the home of his grandmother in the city of Ft. Smith, Ark., where he now lives and was living at the time of the filing of this suit by Norris.

On the trial of the case before the chancellor an exemplification of the record of all of the proceedings in the Arizona court relative to the disposition of the person and estate of the minor child after the death of his mother was filed and oral testimony taken. The statutes of Arizona relating to the adoption of minors is found at sections 117, 118, 119, 120, 121, 122, 123, and 124 of the Revised Code of Arizona adopted in 1928. Section 117 provides that minor children may be adopted by an adult person at least ten years older than the person adopted with the consent of the child if over fourteen years of age, subject to the rules thereafter prescribed in the statute.

Section 118 provides that the petition shall be filed in the superior court of the county in which the child resides, and that, where the petitioner has a husband or wife, it is necessary for said husband or wife to consent and join in the petition, and that the attorney of the county in which the child resides, "upon application of the person seeking such adoption, shall draw the petition therefor and act as attorney for such petitioner in all adoption proceedings, without expense to the petitioner. No fees shall be charged in adoption proceedings by the clerk of any court, sheriff or other public officer."

Section 119 is as follows: "The parents of the child, or the survivor of them, shall, except as herein provided, consent in writing to such adoption. If neither parent is living, the guardian of the child, or if there is no guardian, the next of kin in this state, may consent; or if there is no next of kin, the court may appoint some suitable person to act in the proceedings as next friend of the child to give or withhold such consent."

Section 120 provides for proceedings where either parent is insane or imprisoned.

Section 121 is as follows: "Upon the filing of the petition, the court shall fix a day for the hearing thereof. If the parent, guardian, or next of kin does not consent to the adoption of a child, a copy of the petition and of the order fixing the day of hearing shall be served on him as a summons in a civil action, if found in the state, and in not, by publication once a week for three successive weeks in such newspaper in the county as the court may direct, the last publication to be at least four weeks before the time appointed for the hearing. Like notice shall also be published when a child has no parent living, and no guardian or next of kin in this state. The court may order such further notice as it deems proper."

The order for adoption made on November 7, 1929, is as follows: "This matter having come on regularly for hearing and it appearing that said minor, Thomas Clark Dunn, is now present and the consent of James Logie that petitioner adopt said minor child having been signed and filed herein; that said James Logie is the guardian of the person and estate of said minor child; that the father of said minor child, Thomas A. Dunn, died on or about the 16th day of July, 1926, and that the mother of said minor child, Bernice Dunn Norris, died on or about the 17th day of October, 1929; that said minor child is of the age of approximately nine years and six months; that said petitioner has filed herein an agreement with said minor child and with each person whose consent has been filed herein that said minor child shall be adopted by said petitioner and treated in all respects as his own lawful child should be treated, including the right of support, protection and inheritance, and it appearing that such adoption will be for the best interests of said minor child; that said petitioner and said minor child and all persons whose consent is necessary have each appeared herein and were examined as provided by law; that said petitioner resides in this county and that said petitioner desires that the said Thomas Clark Dunn shall take his family name and be known hereafter as Thomas Clark Dunn Norris.

"It is therefore adjudged that the petitioner, Fred H. Norris, adopt said minor child and from this day forward said minor child shall be treated by him in all respects as his own lawful child should be treated, including the right of support, protection and inheritance; that said petitioner and said minor child shall bear toward each other the relation of parent and child and that said minor child shall take the family name of said petitioner and be hereafter known as Thomas Clark Dunn Norris."

The record of the Arizona court with reference to the appointment of James Logie as guardian discloses that James Logie filed his petition for guardianship of the person and estate of the minor in which he alleged that he was a citizen and resident of Douglas, Cochise county, Ariz.; that he is not related in any way to the minor; that the minor had no lawful guardian and no relatives within the state of Arizona; that he was within the age of nine years, and had an estate in Cochise and Pima counties, Ariz., which needed attention. This petition was duly sworn to and an order made by the judge of the court on the 24th day of October appointing the 5th day of November, following, as the day for the hearing of the petition. The record shows that a notice was given by the clerk of the filing of the petition and of the date for the hearing by the court, which notice was dated October 24th, and on the 5th of November, following, it is shown that the clerk made a certificate to the effect that he had published the notice on October 24th by posting copies thereof — one on the public bulletin board at the entrance of the county courthouse, one on the public bulletin board in the lobby of the United States post office in the city of Tombstone, and one on the public bulletin board at the entrance of the office of the clerk of the superior court, all in the aforesaid county and state. All of these preliminary proceedings appear to have been in strict conformity with the statutes of Arizona relating to the application and notice for letters of guardianship. On November 5th the application came on for hearing, when the prayer of the petition was granted, and the court ordered "that the said James Logie be, and is hereby, appointed guardian of the person and estate of the said minor, Thomas Clark Dunn, and that letters of guardianship of the person and estate of said minor be issued to him upon his giving bond to said minor in the penal sum of $1,000 and upon his taking and taking and subscribing an oath according to law."

The next matter relating to the guardianship appearing in the exemplification of the record is the following:

"Bond"

"Know all men by these presents:

"That we, James Logie, as principal and the American Employers' Insurance Company, as surety, are held and firmly bound unto Thomas Clark Dunn, in the sum of One Thousand ($1,000) Dollars, lawful money of the United States of America, to be paid to the said Thomas Clark Dunn, for which payment, well and truly to be made, we bind ourselves, our and each of our heirs, executors, administrators, successors and assigns, jointly and severally, firmly by these presents.

"Signed and dated this 7th day of November, A. D. 1929.

"The condition of the above obligation is such that whereas, by an order of the superior Court of Cochise County, State of Arizona, duly given, made and entered on the 5th day of November, A. D. 1929, the above bounded James Logie was appointed guardian of...