Sarazin v. Union R. Co.

• Decision Date: 23 January 1900
• Citation: Sarazin v. Union R. Co., 153 Mo. 479, 55 S.W. 92 (Mo. 1900)
• Parties: SARAZIN v. UNION R. CO. et al.
• Court: Missouri Supreme Court

55 S.W. 92

153 Mo. 479

SARAZIN v. UNION R. CO. et al.

Supreme Court of Missouri, Division No. 2.

January 23, 1900.

APPEAL — ADOPTION — ACKNOWLEDGMENT — VALIDITY — ACTION FOR WRONGFUL DEATH.

1. Where plaintiff failed to take exceptions to rulings in defendant's favor in the trial court, such failure cannot be considered on an appeal by the defendant.

2. The acknowledgment of a deed of adoption of a child described plaintiff's husband and plaintiff, "his wife," as having personally appeared before the notary, and to him known to be "the person described in, and who executed, the foregoing instrument, and acknowledged that he executed the same as his free act and deed." Rev. St. § 968, provides that all deeds of adoption shall be acknowledged, as conveyances of realty. Id. § 2408, provides that when a married woman unites with her husband in a conveyance, and acknowledges the same, she shall be described in the acknowledgment as his wife. Held, that the deed of adoption was absolutely void, because not executed as required by the statute.

3. Where articles of adoption are void for want of proper acknowledgment, the adopting parent cannot recover for the wrongful death of the child.

Appeal from St. Louis circuit court.

Action by Susan E. Sarazin against the Union Railroad Company and another. Judgment for plaintiff, and defendants appeal. Reversed.

This suit was originally brought by the present plaintiff and her then husband, Norbert J. Sarazin, as the adoptive parents of one Susan V. Chalfant, a female child about 9 years of age, and unmarried, against the defendant companies, for $5,000 damages for running over and killing said child in the city of St. Louis on the 3d day of October, 1894. After the institution of the suit, to wit, on the 13th day of June, 1895, said Norbert J. Sarazin died, and its prosecution has since been continued by his wife alone. Susan V. Chalfant was the granddaughter of the original plaintiffs. Her mother died on the 25th day of January, 1888, and Susan V.'s grandparents, by and with the written consent of her father, Julian O. Chalfant, undertook, by deed of date January 28, 1888, to adopt her, and to that end had prepared and signed an instrument of writing, which, together with the certificate of acknowledgment and of record, is as follows:

"This deed of adoption made and entered into this twenty-eight day of January, A. D. 1888, by Susan E. Sarazin and Norbert J. Sarazin, her husband, both of the city of St. Louis, state of Missouri, witnesseth, that, in accordance with the provisions of the statutes of the state of Missouri provided therefor, they, and each of them, do hereby adopt as their legal child, heir, and devisee, the certain female child named Susie V. Chalfant, aged three years last November 10, 1887, the infant child of our daughter Adelaide C. Chalfant and her husband, Julian O. Chalfant; said child heretofore and now being known by the name of Susie V. Chalfant. We, the said parties, do hereby constitute and appoint said child, Susie, as our legal heir or devisee, in all respects forever enjoying all the rights and privileges of a natural child. In witness whereof, we have hereunto set our hands and seals this twenty-eighth day of January, A. D. 1888. N. J. Sarazin. [Seal.] S. E. Sarazin. [Seal.]

"State of Missouri, City of St. Louis — ss.: On this 26th day of January, 1888, before me personally appeared N. J. Sarazin and S. E. Sarazin, his wife, to me known to be the person described in and who executed the foregoing instrument, and acknowledged that he executed the same as his free act and deed. In testimony whereof, I have hereunto set my hand and affixed my official seal at my office in St. Louis the day and year first above written. My term expires June 28th, 1889. R. J. Delano, Notary Public, St. Louis, Mo. [Seal.]

"State of Missouri, City of St. Louis — ss.: I, the undersigned, recorder of deeds for said city and state, do hereby certify that the foregoing and annexed instrument of writing was filed for record in my office on the twenty-eighth day of January, A. D. 1888, at 3:40 o'clock p. m., and is truly recorded in Book 846, page 467. Witness my hand and official seal on the day and year aforesaid. Wm. A. Hobbs, Recorder. [Seal.]"

From the time of her adoption until her death, the child continued to live with her grandparents. At the trial of the cause on March 9, 1897, plaintiff offered in evidence the deed of adoption, which, upon objection of defendants upon the ground that the same was incompetent and irrelevant, and because not acknowledged by the plaintiff as required by statute, was excluded, whereupon plaintiff took a nonsuit, with leave to move to set the same aside. Thereafter, in due time, on motion of plaintiff, the nonsuit was set aside, and a new trial granted; and from the order setting aside the nonsuit, and granting plaintiff a new trial, defendants appeal.

Smith P. Galt, for appellants. Sterling P. Bond, for respondent.

BURGESS, J. (after stating the facts).

As plaintiff is not complaining of the action of the court in setting aside the nonsuit and granting her a new trial, it is immaterial that she took no exception to the ruling of the court in excluding the deed of adoption. If, however, the motion to set aside the nonsuit and to grant a new trial had been overruled, and plaintiff had appealed from the order overruling the motion, then, in order to have the action of the court reviewed here with respect thereto, it would have been necessary that the record show that plaintiff excepted to the action of the court in excluding the deed; but, in so far as plaintiff is concerned, that ruling was corrected by granting a new trial. In a law case, it is only errors complained of by the appealing party that are reviewed by the supreme court. By section 4425, Rev. St. 1889, it is...