State ex rel. Buerk v. Calhoun

• Decision Date: 29 August 1932
• Citation: 52 S.W.2d 742,330 Mo. 1172
• Parties: State ex rel. Martin E. Buerk, Relator, v. John W. Calhoun, Judge of the Juvenile Division of the Circuit Court of the City of St. Louis
• Court: Missouri Supreme Court

52 S.W.2d 742

330 Mo. 1172

State ex rel. Martin E. Buerk, Relator, v. John W. Calhoun, Judge of the Juvenile Division of the Circuit Court of the City of St. Louis

Supreme Court of Missouri

August 29, 1932

Peremptory writ awarded.

Roby Albin for relator.

(1) A writ of mandamus should issue to compel a judicial officer to proceed with a cause of which he has jurisdiction and to undo an official act improperly done, which precludes a determination of a trial on its merits. State ex rel. v McElhinney, 246 Mo. 44; State ex rel. v. West, 272 Mo. 304. (2) The circuit court is a court of general jurisdiction, and the juvenile division thereof, being set aside by the Legislature, its jurisdiction may be fixed by the Legislature. R. S. 1929, sec. 14137; Ex parte Walbridge 285 S.W. 167; State ex rel. v. Trimble, 306 Mo. 657. (3) The Legislature has vested the juvenile division with jurisdiction in cases where any reputable person desires to adopt any other person, without restriction as to age. R. S 1929, secs. 14073, 14074.

Gilbert Weiss for respondent.

(1) Children coming under the Juvenile Act and the Adoption Act are sui generis, and the acts should be construed in pari materia. Title to Adoption Act, 1917 Sess. Acts, 193; Title to Juvenile Act, 1909 Sess. Acts, 423; State ex rel. Bank v. Davis, 314 Mo. 388. (2) Neither the Juvenile Act nor the Adoption Statute confer original jurisdiction over an adult. Sec. 14073 et seq.; Sec. 14136 et seq. (3) The circuit court, assuming juvenile jurisdiction, is strictly confined within the limited and special powers granted by legislative warrant. State v. Gregori, 2 S.W.2d 749; State ex rel. Dew v. Trimble, 269 S.W. 617; State ex rel. Kelly v. Trimble, 297 Mo. 119; Taffe v. Ryan, 25 Mo.App. 263. (4) The Adoption Act itself excludes the adoption of adults. Sub-Div. (a) It raised the age of majority in females for the purposes of the act to 21. Sec. 14079. (b) It requires the petition to contain the name, sex and age of the child, and the name and residence of the parents and the ability of petitioner to properly care for, maintain and educate the child. Sec. 14077; State v. Schilb, 285 S.W. 748. (c) It requires that the court's judgment shall find that the petitioners are of good character and of sufficient ability to properly care for, maintain and educate the child, and that the welfare of the child will be promoted by the sustaining of the adoption. Sec. 14078; State v. Schilb, supra. (d) That it creates reciprocal rights between the child and the adopted parents providing for its nurture and education. Sec. 14079. (e) It assumes wardship over the child prior to adoption. Sec. 14081. (5) Adoption acts being in derogation of common law, jurisdictional factors are strictly construed and must affirmatively appear in the statute that is invoked. Hockaday v. Lynn, 98 S.W. 585, 200 Mo. 456; Lamb v. Felham, 276 S.W. 71; Melek v. Curators of University of Mo., 250 S.W. 614, 213 Mo.App. 572; In re McFarland, 12 S.W.2d 523.

OPINION

Henwood, J.

This is an original proceeding in mandamus. Relator filed in the juvenile division of the Circuit Court of the City of St. Louis his petition, in proper form, for permission to adopt as his child one Lynna Rowland, a married woman of the age of thirty-one years and a resident of said city. The said Lynna Rowland and Alfred B. Rowland, her husband, entered their appearance to the proceeding by filing therein their written consent to the adoption sought. When the cause came on for hearing, respondent, as judge of said court, dismissed the same on the ground that the court was without jurisdiction. Thereupon, relator applied to this court for a writ to compel respondent to set aside the order of dismissal and to hear and determine the cause on its merits.

An alternative writ of mandamus was issued, and in his return thereto respondent asserts, among other things: "That the said juvenile court has no jurisdiction of the said subject-matter, it being a statutory division of the circuit court, exercising limited and special powers; and that its jurisdiction is confined strictly within the statute that is invoked; and that the act creating the right of adoption is only applicable to children, their care, custody, and inheritance; and that in no place does it create the right of adoption of an adult."

The question presented for our determination is whether an adult person may be adopted as the child of another person under our present adoption statute.

The adoption statute now appears as Article I, Chapter 125, Sections 14073 to 14081, Revised Statutes of 1929. Sections 14073 and 14074 read, in part, as follows:

"Sec. 14073. -- Any reputable person desiring to adopt another person as his child, may petition the juvenile division of the circuit court of the county in which the person sought to be adopted resides, or if such person has no place of abode in this State, of the county in which the person seeking to adopt resides, for permission to adopt such person as his child." (Our italics.)

"Sec. 14074. -- The court shall not decree the adoption, except as hereinafter provided, unless in cases where the child or person to be adopted is of the age of 12 years or over and consents in writing to the adoption; and in cases where the child or person to be adopted is under the age of 21 years, the parents or surviving parent and guardian of the child, if any, consent in writing, to the adoption; and the approval of the court shall be requisite in all cases, such approval being given or withheld as the welfare of the child or person sought to be adopted may, in the opinion of the court, demand." (Our italics.)

In the subsequent sections the individual to be adopted is designated as "child" and not as "person" or "child or person."

Counsel for respondent says that the words child and person are used interchangeably in the statute. With this construction we agree. But, the word child is used in the sense of its relation to the word parent, and does not signify minority. This we say because the word child as similarly used in the original adoption statute was so construed by this court. [In re Estate of David Moran, 151 Mo. 555, 52 S.W. 377.] And the presumption is that the Legislature in enacting the new statute used the word in the same sense as it was used in the old statute, nothing to the contrary appearing. [Kelly v. Thuey, 143 Mo. 422, 45 S.W. 300.]

The language of Section 14073 excludes all idea of age limit or minority. Under its provisions, any...