Nugent v. Powell

• Decision Date: 19 May 1893
• Parties: NUGENT, GUARDIAN, ETC., ET AL. v. POWELL ET AL
• Court: Wyoming Supreme Court

33 P. 23

4 Wyo. 173

NUGENT, GUARDIAN, ETC., ET AL. v. POWELL ET AL

Supreme Court of Wyoming

May 19, 1893

ERROR to District Court for Laramie County, HON. RICHARD H. SCOTT Judge.

The controversy in this case arose upon a petition for the distribution upon final settlement of the estate of Michael Powell, deceased, who had died intestate February 26, 1888 leaving neither a wife surviving him, nor a child of his blood. The petition was filed December 31, 1889, by Patrick Powell, father, Margaret Powell, mother, and John Powell Patrick Powell, Jr., Hugh Powell, Margaret Taggart, Annie Powell and Sarah Powell, brothers and sisters, respectively of the deceased, claiming to be the only heirs at law of said decedent, and asking that the estate be distributed between them. The petition was contested by the guardian of Emily Powell, formerly Emily Leonard, who, it was claimed, had been legally adopted as a child by said decedent and Elizabeth his wife on the 4th day of January, 1882. The petition was filed and the adoption proceedings were had in the probate court, which until statehood (July 10, 1890) had jurisdiction over the administration of the estates of deceased persons, and also the adoption of children. Upon the admission of the state all the records, papers and proceedings of the probate court, and all causes and matters of administration and other matters pending therein passed into the jurisdiction and possession of the district court. The matter of the distribution being undecided at the time the district court obtained original jurisdiction over said estate, it was heard and determined by that court and its final judgment rendered January 26, 1892, sustaining the claim of the petitioners above named. The adoption proceedings were adjudged void.

The mother of Emily Leonard had consented to the adoption, but the father was not present and was not notified. On the trial the probate judge who had allowed the adoption, testified that the question was asked Mrs. Leonard whether the father of the child was a resident of Laramie County, Wyoming; and she answered that he was not. The question was asked whether he was providing for her or her child, and she answered that he was not and had not for at least a year previous, but had abandoned them, and that she was unable to provide for herself and children, and her reason for wishing to relinquish the child was to provide means for its maintenance and education. The mother was at that time, the witness testified, receiving assistance from the county. The three sections of the statute particularly affecting the adoption proceedings are as follows:

Section 2274. Any parent willing to relinquish all right to his or her minor child to any other person willing to adopt the same, shall make application to the judge of probate of the county in which such parent resides; and if such judge of probate, after due investigation, shall be satisfied that the person making said application is entitled to make such relinquishment, and that the person proposing to adopt such child is a suitable person to assume the relation of parent, and that the consent of both parties to such adoption is natural [mutual] and voluntary, he shall enter of record in the records of his office, the fact of such application and consent, with his approval of such agreement and adoption.

Sec. 2275. Any person may appear before the judge of probate of the county where he or she resides and offer to adopt any minor child as his or her own: Provided, such minor and his or her parents, if living, or guardian, if any, or county commissioners, as hereafter provided, shall appear and consent to such adoption.

Sec. 2279. In case the parent of any child is a non-resident of this Territory, or shall have removed from the county in which his or her child may be at the time it is proposed to adopt the same as aforesaid, the written consent of such parent, properly acknowledged, shall be obtained and filed with said judge of probate, which shall have the same effect as if such parent were personally present and consented to such adoption. And said judge of probate shall note the filings of such written consent in his record of approval, and the like proceedings shall be had as if such parent were present.

The adoption proceedings had not been entered of record in any book of records of the probate court; but pending the contest upon the petition for distribution--on Jan. 25, 1892--the district court ordered the written relinquishment of the mother and the order of the court made thereon to be entered of record by the clerk of the court nunc pro tunc. The other facts and special findings and conclusion of the trial court are sufficiently stated in the opinion. Motion for new trial was overruled. Proceedings in error were instituted on behalf of Emily Powell, the adopted child, in the name of Francis J. Nugent, her regular guardian, and Melville C. Brown, guardian ad litem.

Decree reversed and cause remanded.

Brown &amp Arnold, for plaintiff in error.

If the child Emily was lawfully adopted there can be no question as to her right to the estate. (Rev. Stat., Sec. 2286.) If the judgment of adoption was not void, but voidable on the ground of irregularity, then it cannot be attacked in this proceeding collaterally. That judgments of courts of record and courts of general jurisdiction cannot be collaterally attacked is axiomatic. (Skinner v. Moore, 30 Am Dec., 164; Greer v. Rhyne, 67 N.C. 340; 1 Black on Judg., secs. 245, 246, 250, 252, 270.) And the question of jurisdiction is to be tried by the record itself. As to judgments of domestic courts of record and of general jurisdiction, their jurisdiction is conclusively presumed, unless the record itself discloses a failure thereof. (Jackson v. Dyer, 104 Ind. 516; Coit v. Haven, 30 Conn. 190; Carpentier v. City of Oakland, 30 Cal. 440; Hahn v. Kelley, 34 Cal. 391; Black on Judg., sec. 273; McCormick v. Sullivant, 10 Wheat, 192; Walker v. Cronkite, 40 F. 133; Granger v. Clark, 22 Me. 128; Morse v. Presley, 25 N.H. 299; Cook v. Darling, 18 Pick., 393; Hartman v. Ogbom, 54 Pa. 120; Defour v. Comfranc, 11 Martin (Da.) 607; Rogers v. Bauchamp, 102 Ind. 33; Homer v. State Bank, 48 Am. Dec., 355; Lawler v. White, 27 Tex. 250; Allen v. Huntington (Vt.) 16 Am. Dec., 702; Swearingen v. Gulick, 67 Ill. 208; Burke v. Elliott, 4 Ired. L., 359; Moore v. Gridley, 75 N.C. 41; Prigg v. Adams, 2 Salk., 674; Finneran v. Leonard, 7 Allen, 56; Bridgeport Savings Bank v. Eldridge, 73 Am. Dec., 638, and note 693.) Probate courts are courts of record, and entitled to presumption of jurisdiction. (Musselman's appeal, 65 Pa. 485; McPhersal v. Cunlif, 11 S. & R., 422; Shroyer v. Richmond, 16 O. St., 455; Johnson v. Beazley, 64 Mo. 250; Doolittle v. Holbon, 28 Vt. 819; Tucker v. Harris, 13 Ga. 1; Deuxden Obert v. Hummel, 18 N. J. L., 75; Duckworth v. Duckworth, 35 Ala. 70; Osborn v. Graham, 30 Ark. 67; Dayton v. Mintzer, 22 Minn. 393; Boston v. Robbins, 126 Mass. 384; Guco v. Coml. Bk., 70 Cal. 339; Martin v. Robinson, 67 Tex. 368; 40 Id., 179; Woodruff v. Cook, 2 Edw., Ch. 259; Wells on Juris., secs. 32-46; Black on Jd., sec. 287; Griffith v. Frazier, 8 Cranch, 9; McNitt v. Turner, 16 Wall, 353; Moffitt v. Moffitt, 69 Ill. 641.) The statute in reference to adoption was, however, fully complied with. The only attack upon the judgment is by an attempt to show from evidence de hors the record that the child had a father living, and that the mother was not entitled to make relinquishment. If that were so the probate court, having the right to inquire and did inquire into that matter, made a mistake; but that mistake cannot be connected in these proceedings or inquired into. While the judgment of adoption was possibly erroneous it cannot be attacked collaterally. (Authorities cited above: Huff v. Hutchinson, 14 How., 586; Thompson v. Tolurie, 2 Pet., 157; Bannister v. Higginson, 15 Me. 73; Davidson v. Thornton, 7 Pa., 128; Clark v. Bryan, 19 Md. 1; Howgson v. Meden, 77 Va. 704; Spencer v. McConagle, 107 Ind. 410.) If the right of the mother to relinquish the child was jurisdictional, the probate court passed upon that question and necessarily found that it had jurisdiction; and its conclusion whether erroneous or not cannot be contradicted by extraneous evidence. (McCormick v. Sullivant, 10 Wheat, 192; Walker v. Cronkhite, 40 F. 133; Granger v. Clark, 22 Me. 128; Morse v. Presley, 25 N.H. 269; Rodrigas v. E. Riv. Sav. Inst., 63 N.Y. 460; Coit v. Haven, 20 Conn. 190; Hartman v. Ogbom, 54 Pa. 120.) Section 2282 Rev. Stat. provides that in cases of abandonment of children the county commissioners shall consent to the adoption. Evidence improperly admitted shows that such commissioners had such knowledge of the matters then before the probate court, from which fact the court evidently concluded that they did consent. But in this case there was abandonment by one parent only. The conditions therefore did not exist for the commissioners' action. We have no statute expressly covering a case like the one at bar. When the father dies or is incapable of acting the mother becomes the guardian. (Rev. Stat., Sec. 2250.) The father having abandoned the child, may be said to be incapable of acting. He had no right to the child after abandonment, and therefore no reason for his consent existed. (Winans v. Luppie, 47 N.J. Eq. 302.) The district court became the legal successor of the probate court; could it hold its former judgment void? (In re Bush, 47 Kan. 264.) The collateral heirs stand in no better attitude than Powell himself before his death. As against the child they can assert no right to the estate. Powell, having done all he could to lawfully adopt the child, would have been estopped from denying his obligations of...