Opinion
6 Div. 870.
February 13, 1919.
Appeal from Circuit Court, Walker County; T. L. Sowell, Judge.
Ray Cooner, of Jasper, for appellant.
J. H. Bankhead, Jr., of Jasper, for appellee.
The appointment by the probate court of Tuscaloosa county of the appellee as guardian of the person and estate of the minor, whose custody is here involved, is attacked by counsel for appellant as being void for the reason that, at the time of said appointment, the minor was residing with the respondent in Walker county. The legal domicile of the parents of the minor was Tuscaloosa county at the time of their death, and in such county the latter's estate was located.
Under the principles declared in Allgood v. Williams, 92 Ala. 551, 8 So. 722, we think the probate court of Tuscaloosa county was acting entirely within its jurisdiction in appointing petitioner as guardian of said minor. The appointment was of the person, as well as the estate, of the minor, and we see nothing upon the face of the proceedings which would authorize the decree of the probate court to be here collaterally attacked as void or wanting in force and effect.
This much is said in answer to argument of counsel, but by these observations we do not mean to indicate a view that the decision here is rested solely upon these considerations.
While we are of the opinion that the appointment of petitioner as guardian was legal so far as this proceeding was concerned, yet, in cases of this character, the court, exercising full equity powers, has acquired the jurisdiction of this minor, who has therefore become a ward of the court, and the welfare of the child is a question of paramount importance; the rights of the parties to the litigation being a matter of secondary consideration. Murphree v. Hanson, 197 Ala. 246, 72 So. 437.
The petitioner is the uncle of this child, and lives in the household of his father and mother in the city of Florence. He is a person of education and good moral training; and the grandparents of the child, who bear an excellent name, are shown to be desirous of having this child a member of the family and to aid in its education. The educational and moral advantages of the city of Florence, where they reside, are shown to be exceedingly good.
The respondent is not shown by the evidence to be of any relation, but we find in brief of counsel a statement that he is also an uncle of the child. As there is no denial of this by counsel for appellee, under the circumstances here disclosed, we may assume this relationship exists. Respondent resides in a rural community; has a salary which nets him about $75 per month, out of which he must support his family, consisting of a wife and four children. The educational advantages are, of course, not as great as those at the home of the petitioner. The respondent has a small estate, but evidently the income therefrom is a matter of no significance, and, considering the burden of a family which he has to bear, it could hardly be held that he was as free financially as petitioner.
The child has some estate, which, if carefully managed and preserved, may be of some substantial aid to it in the future.
Looking to the welfare of the child, we are persuaded that the conclusion of the court below in awarding the custody of the child to petitioner, appellee, was correct, and should be here affirmed.
Appellant's counsel seem to lay much stress upon the proceedings for adoption filed by respondent in the probate court of Walker county, as giving to respondent the legal right to the custody and control of the child. We gave consideration to this question in Murphree v. Hanson, supra, wherein it was held that such a proceeding was in no sense a judicial act, and that it had about it no elements of a judicial decree, stating further:
"There is nothing in the statute cited, which we think would sustain the contention that such a declaration of adoption would be binding and effective on a court of equity once acquiring jurisdiction of the person of the child, as to its proper custody."
It results that the decree appealed from will be affirmed.
Affirmed.
ANDERSON, C. J., and McCLELLAN and SAYRE, JJ., concur.