Coleman v. Coleman , 81 Ark. 7 ( 1906 )

Riddick, J.,

(after stating the facts.) This is an appeal by Heenan Coleman, a brother of D. L. Coleman, deceased, from a judgment of the chancery court of Ploward. County holding that an order of adoption made by the probate court of that county on the petition of D. L. Coleñian was a valid order, and had the effect to make the adopted child the heir of Coleman. The petition upon which this order of adoption was made is not set out in the record, but the recitals in the order itself show all the jurisdictional facts required by the statute.

The language of the statute is that “any person desirous of adopting any child may file his petition therefor in the probate court in the county where suoh child resides.” Kirby's Digest, § 1341-

“Such petition shall specify, first, the name of such petitioner; second, the name of such child, its age, whether it has any property, and, if so, how much; third, whether such child has either father or mother living, and, if so, where they reside.” Id. § 1342.

This court in the case of Morris v. Dooley, 59 Ark. 483, held that, in addition to the facts which are expressly required to be stated in the petition, it must be shown either in the petition or in the order of adoption that the child was a resident of the county where the order was made, for that in the opinion of the court was necessary .to show that the court had jurisdiction.

The only objection made to the order under consideration here is that it does not show that the father was not living; or state that it was shown by two witnesses that the residence of the father was unknown. The statute from which we have quoted above requires that the petition for adoption shall, among other matters, state “whether such child has either father or mother living, and, if so, where they reside.” As before stated, the petition on which this order was made is not set out, but the order recites on this point “that the mother of said boy died soon after his birth, and the residence of the father, if living, is unknown to. petitioner.” We understand from this that it was alleged,. in substance, that the mother was dead, and that the residence of the father was unknown. This was a substantial compliance with the statute. Moreover, the petition not being set out in the record, it will be presumed that it complied with the statute.

Another section of the statute provides that the court “shall not adopt such child if it have a father or mother living, unless such father or mother appear in open court and give consent thereto, provided, that if such petitioner show by two competent witnesses that the residence of such father or mother be unknown, then such court may order the adoption of such child.” Id., § 1345. Appellant contends that the order is void and subject to collateral attack because it does not recite that it was shown by two witness that the residence of the father was unknown. But ■the jurisdiction of the court did not, in our opinion, depend on such evidence, nor was it necessary to make such a recital in the record. Making the order of adoption without such proof would be error, and might'be ground to set such order of adoption aside on petition of the father of the adopted • child, but neither D. L. Coleman, on whose petition the order of adoption was made, nor any one claiming through him, as plaintiff does, would be allowed to object to the judgment on that ground. Nugent v. Powell, 4 Wyoming, 173, 62 Am. St. Rep. 17; Van Matre v. Sankey, 148 Ill. 553, 39 Am. St Rep. 196, and note; In re Williams, 102 Cal. 70; Appeal of Wolf, 13 Atlantic Rep. (Pa.), 760.

For the reasons stated, we are of the opinion that the order of adoption was valid, and that the decree of the chancellor upholding same was right.

Judgment affirmed.