State Ex Rel. Sheble v. District Court , 92 Mont. 411 ( 1932 )

1. Necessity for notice to parents or legal custodian before adoption of child, see note in 76 A.L.R. 1077. See, also, 1 Cal.Jur. 429; 1 R.C.L. 607 (1 Perm. Supp., p. 167). This is a proceeding in certiorari. The relator alleged that his minor child, Constance Bernadine Sheble, one year of age, without his consent and without notice to him, had been unlawfully adopted by Henry L. Magee and wife under an order made and entered by the district court of Glacier county, Montana, on June 22, 1932. The mother died upon the day following the child's birth.

The application being deemed sufficient to show prima facie[1] that the district court had proceeded without jurisdiction in the adoption proceedings, we issued the writ prayed for commanding the district court to certify to us the record of its proceedings in the matter, which was done. It does not appear therefrom that any notice of the application of Mr. and Mrs. Magee to adopt the child was given to the father, and there is not any showing that he waived notice; nor is there any showing that he consented to the adoption of the child. The application, consent, and agreement of Mr. and Mrs. Magee, and the order of adoption, were made on the same day.

Upon the authority of State ex rel. Thompson v. DistrictCourt, 75 Mont. 147, 242 P. 959, the order, being void as to the father, applicant here, is annulled.

ASSOCIATE JUSTICES ANGSTMAN and MATTHEWS, HONORABLE JEREMIAH J. LYNCH and HONORABLE JOHN HURLY, District Judges, sitting, respectively, in place of JUSTICES GALEN and FORD, disqualified, concur.