Opinion
No. 4822.
March 31, 1928.
APPEAL from the District Court of the Fifth Judicial District, for Bannock County. Hon. Robert M. Terrell, Judge.
Order dismissing appeal from the probate court. Reversed.
C.M. Jeffery, for Appellants.
The parents are entitled to their day in court, and if properly brought into court and their rights to the custody and control of the child adjudicated, the parents have a right of appeal in so far as the judgment of the probate court affects their rights to the care, custody, society and control of said child. ( In re Sharp, 15 Idaho 120, 96 P. 563, 18 L.R.A., N. S., 886.)
If the parents are not brought into court and their rights in and to the custody, care and control of the child adjudicated, the judgment of the probate court does not affect their rights and is not binding on the parent. ( In re Sharp, supra; Mill v. Brown, 31 Utah, 473, 120 Am. St. 935, 88 P. 609; Allen v. Williams, 31 Idaho 309, 171 P. 493; Martin v. Vincent, 34 Idaho 432, 201 P. 492; Milwaukee Industrial School v. Milwaukee, 40 Wis. 328, 22 Am. Rep. 702.)
A.H. Conner, Attorney General, and John W. Cramer, Assistant Attorney General, for Respondent.
The matter of appeals from probate courts is within the legislative will, and the law-making power may regulate it, extend or limit it as it sees fit. No power exists in the courts to discharge this duty for it. (Const., art. 5, sec. 20; In re Sharp, 15 Idaho 120, 96 P. 563, 18 L.R.A., N.S., 886; In re Estate of McVay, 14 Idaho 56, 93 P. 28; Pierson v. State Board of Land Commrs., 14 Idaho 159; 93 P. 775; State v. Reed, 3 Idaho 554, 32 P. 202.)
An appeal may be taken from a final order or judgment of a probate court in juvenile delinquency matters where the fitness of the parent or guardian to have the custody and control of a minor is adjudicated. (C. S., sec. 1023.)
Melvin Farnsworth was informed against as a juvenile delinquent in the probate court in Bannock county. After detailing the alleged delinquency, the information charged that the child's parents through inability and neglect had lost all control of him and were not fit and proper parties to retain his custody. A citation directed to the parents was served upon the mother. Both parents appeared at the hearing and testified. The court found that the parents were unable to control their son, that he was guilty of the acts of delinquency charged, and committed him to the State Industrial School. From this order the parents appealed to the district court, where their appeal was dismissed upon the ground that such order was not appealable; and the parents have in turn appealed to this court.
The state contends that under C. S., sec. 1023, the order of the probate court could be reviewed upon questions of law only, and that, the question of appellants' fitness being a question of fact, no review thereof was permitted by the statute. This contention was directly disposed of by In re Sharp, 15 Idaho 120, 96 P. 563, 18 L.R.A., N.S., 886, where in a unanimous decision the court said: "When the court undertakes to make any order or enter any judgment that is binding upon or affects the minor's legal representative, either removing him as guardian or adjudging and decreeing his incapacity or unfitness for the office, or affecting any of the property rights of the ward, — then and thereupon the parent or guardian must be duly and regularly brought into court and have his day in court, and from the judgment or order entered, has his right of appeal under sec. 4831, Rev. Stat."
The section referred to is now C. S., sec. 7173, which at the time of the appeal to the district court was still in full force and effect.
The order dismissing the appeal was therefore erroneous, and is hereby reversed with directions to reinstate the appeal.
Wm. E. Lee, C. J., and Budge, Givens and Taylor, JJ., concur.