Ward v. Magness

• Decision Date: 08 April 1905
• Citation: 86 S.W. 822
• Parties: WARD et al. v. MAGNESS.
• Court: Arkansas Supreme Court

86 S.W. 822

WARD et al. v. MAGNESS.

Supreme Court of Arkansas.

April 8, 1905.

Appeal from Circuit Court, Independence County; Frederick D. Fulkerson, Judge.

Action by Ida Bell Magness against Walter Ward and others. From a judgment of the circuit court affirming a probate decree amending an order of adoption nunc pro tunc, defendants appeal. Affirmed.

Johnson and Adams were neighbors in Independence county, and, while hunting together, Johnson was accidentally killed Adams. Johnson was childless, and took an infant daughter of Adams to rear as his own after her father's death. The child was only three years old when orphaned, and was cared for by Johnson as his own till her marriage, and afterwards he helped her husband in business matters in a substantial and generous way. When the child (Ida Bell, this appellee) was about 15 years of age, and about 2 years after the General Assembly passed the act authorizing adoption of children, Johnson decided to have Ida Bell legally adopted. He applied to one of his neighbors (a justice of the peace) to attend to the adoption proceedings, and the result was the entry of the following order on February 11, 1887:

"In the Matter of the Adoption of Ida Bell Adams. Now, on this day was presented to the court the petition of J. J. Johnson, verified by his affidavit, which petition is in words and figures following, to wit:

"`To the Probate Court of Independence County, Ark. At the February Term Thereof, 1887. To the Hon. A. J. Craig, presiding: Your petitioner, John J. Johnson, would represent to your honor that Ida Bell Adams is fifteen years old; that she is not the owner of nor possessed of any property at all; that she has neither father nor mother living; and that I have raised and taken care of her ever since she was three years old. Your petitioner would therefore petition your honor to make an order adopting her the legal heir of him, the said J. J. Johnson, with all the legal rights of a natural born child, and that her name be Ida Bell Johnson, and your petitioner will ever pray.

                                               his
                                       "`J. J. X  Johnson
                                               mark
                

"`Attest: J. W. Six.

"`Subscribed and sworn to before me this 22d day of January, 1887. J. W. Six, J. P.'

"And the court, being fully advised in the premises, [and finding that said Ida Bell Adams now resides in Independence county, Arkansas, and did so reside therein at the time of filing said petition], doth grant said petition.

"It is therefore considered, ordered, and adjudged by the court that Ida Bell Adams be, and she is hereby, decreed by this court, under an act approved February 25, 1885 (Laws 1885, p. 32, c. 28), the adopted child of the petitioner, J. J. Johnson, and that from and after this date the said Ida Bell Adams shall take the name of Ida Bell Johnson, and shall be entitled to and receive all the rights and interests in the estate of such adopted father, by descent or otherwise, the same as if she was the natural heir of J. J. Johnson, the petitioner herein."

The part in brackets and italicized was inserted by nunc pro tunc order made on the 3d of September, 1902. About three years after the order of adoption, Ida Bell married Magness, and for several years she and her husband lived with Johnson. Johnson married subsequently, and there is evidence that before his death his intentions to leave everything to Mrs. Magness were changed; but, if so, such change was not evidenced by any will, as he died intestate on the 5th of April, 1902. His widow and next of kin proceeded to have the estate distributed, ignoring the adoption of Mrs. Magness. She gave notice that she would apply to the probate court for a correction by nunc pro tunc of the order of adoption. The parties in interest resisted this, and the contest terminated by the insertion of the part indicated above. An appeal was taken to the circuit court, and on trial anew there the judgment of the probate court making the nunc pro tunc order was affirmed, and appeal was taken to this court. The circuit court also determined at the same time the proper distribution of the estate. As there is no contention in regard to that other than as it is affected by the adoption of Mrs. Magness, it is not necessary to state any further facts in regard to it.

Lyman F. Reeder, Yancey & Casey, and Morris M. Cohn, for appellants. S. D. Campbell and W. S. Wright, for appellee.

HILL, C. J. (after stating the facts).

The sole question for determination is the amendment of the record by the nunc pro tunc order of September 3, 1902. In Morris v. Dooley, 59 Ark. 483, 28 S. W. 30, 430. an order like the one in question was held void on collateral attack because the record failed to show affirmatively that the child was a resident of the county where the order was made. Recognizing the invalidity of the order on its face, the appellee, as soon as she learned its validity was disputed by the widow and next of kin, applied to the probate court to correct the order; alleging that by clerical error it did not speak the truth, and in truth the jurisdictional fact of residence was shown and adjudicated, and asking that the record be amended to show such to have been the truth of the case....