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In re Estate of Newman

Supreme Court of California
Mar 1, 1888
75 Cal. 213 (Cal. 1888)


         Appeal from an order of the Superior Court of Los Angeles County granting letters of administration on the estate of a deceased person.


         The proof of publication of summons in the action of Maldonado v. Maldonado is fatally defective, and cannot support the judgment of divorce, because, -- 1. The affidavit shows that the first publication was made July 1, 1885, or twenty-seven days before suit was brought; 2. The last publication was made October 30th, or eleven days after the decree was signed; 3. The summons was published for two consecutive months, whereas the order required the publication to be made at least once a week for two consecutive months. The proof of deposit in the post-office is fatally defective, because, -- 1. The affidavit does not show that the order of court or the statute was complied with by prepayment of postage; 2. The deposit was not made forthwith, but on the eighteenth day of July, 1885, ten days before suit brought. (McMinn v. Whelan , 27 Cal. 313; Cissell v. Pulaski Co ., 3 McCrary, 449; Galpin v. Page, 18 Wall. 350; Belcher v. Chambers , 53 Cal. 639; Pennoyer v. Neff , 95 U.S. 714; McGahen v. Carr, 6 Iowa 331; 41 Am. Dec. 421; Cofield v. McClelland, 16 Wall. 331; Israel v. Arthur, 7 Col. 512; Brown v. Tucker, 7 Col. 30; Tunis v. Withrow, 10 Iowa 305; 77 Am. Dec. 117; Settlemier v. Sullivan , 97 U.S. 444; Hernandez v. His Creditors , 57 Cal. 333.) The judgment in the divorce action being void, the mother, Mary Maldonado, had no authority to consent to the adoption of the child, and her consent alone did not confer jurisdiction on the court to order the adoption. ( Civ. Code, sec. 224.) The judgment in the divorce suit being void at the date of the alleged adoption, the amendments allowed by the superior court on the fifth day of January, 1887, did not and could not give it validity. (Freeman on Judgments, sec. 117; Macnamara on Nullities, 2, 3, 6; Clapp v. Graves , 26 N.Y. 420; 4 Wait's Practice, 642; Hallett v. Righters, 13 How. Pr. 43; Kendall v. Washburn, 14 How. Pr. 381.) An adopted child does not inherit from its adopting parent. ( Civ. Code, secs. 1383- 1408.)

         Matthew I. Sullivan, and Stephen M. White, for Appellant.

          Lucien Shaw, and James M. Damron, for Respondent.

         An adopted child takes by inheritance from its adopting parent. ( Civ. Code, secs. 227, 228, 1386; Ross v. Ross , 129 Mass. 243; Estate of Wardell , 57 Cal. 491; Powel v. Hafley , 4 S.W. 683.) In the absence of a showing to the contrary, it will be presumed that the judge of the superior court of Ventura County who made the order of adoption had authority to do so. (Westbrook v. Bosborough , 14 Cal. 188; People v. Sassovich , 29 Cal. 480; People v. Mellon , 40 Cal. 655; People v. White, 24 Wend. 539.) The judgment in the divorce suit became operative between the parties and their privies, when signed by the judge and filed, although not formally entered by the clerk. (Gray v. Palmer , 28 Cal. 422; Casement v. Ringgold , 28 Cal. 339; Genella v. Relyea , 32 Cal. 160.) The decree of divorce is valid on its face, and its recitals are such that no question can be made collaterally of its validity. (Hahn v. Kelly , 34 Cal. 391; 96 Am. Dec. 742; Quivey v. Porter , 37 Cal. 462; Moore v. Martin , 38 Cal. 436; Reeve v. Kennedy , 43 Cal. 643; McCauley v. Fulton , 44 Cal. 355-361; Sharp v. Brunnings , 35 Cal. 533; Vassault v. Austin , 36 Cal. 691.) The court had jurisdiction to allow amended proofs of publication and posting to be filed nunc pro tunc. (Lewis v. Ross , 37 Me. 230; Bacon v. Bassett , 19 Wis. 54, and note; Barker v. Bininger , 14 N.Y. 280; Balch v. Shaw , 61 Mass. 284.) The fact that the judgment was rendered by default before the time allowed the defendant to answer had expired does not render the judgment void nor attackable collaterally in any form. (Freeman on Judgments, sec. 126, and notes; Brown v. Tucker, 7 Col. 30; Anderson v. Bell , 9 Cal. 321; Whitwell v. Barbier , 7 Cal. 54; White v. Crow , 110 U.S. 191.)

         JUDGES: In Bank. Paterson, J. McFarland, J., Sharpstein, J., Temple, J., McKinstry, J., and Thornton, J., concurred. Searls, C. J., dissented.


          PATERSON, Judge

[16 P. 888] The provisions of the Civil Code bearing upon the first question presented for our consideration are the following:

         " Sec. 227. The judge must. .. . make an order declaring that the child shall thenceforth be regarded and treated in all respects as the child of the person adopting."          " Sec. 228. A child, when adopted, may take the family name of the person adopting. After adoption, the two shall sustain towards each other the legal relation of parent and child, and have all the rights and be subject to all the duties of that relation."

" Sec. 1386. When any person having title to any estate dies without disposing of the estate by will, it is succeeded to and must be distributed. .. . in the following manner:

         " 1. If the decedent leave no surviving husband or wife, but leave issue, the whole estate goes to such issue; and if such issue consists of more than one child living, or one child living and the lawful issue of one or more deceased children, then the estate goes in equal shares to the children living, or to the child living, and the issue of the deceased child or children, by right of representation."

         Under these provisions, we think that an adopted child is entitled to succeed by inheritance to the estate of the adopting parent. The provisions of sections 227 and 228 extend to all the rights and duties of natural parents and children. The language is general and comprehensive. The use of the word "issue" in section 1386 does not limit the right of inheritance to the natural children only. That section prescribes the rule of inheritance. The word "issue" is there used in the same sense as the words "child" and "children." If the adopted child is by virtue of its status to be "regarded and treated in [16 P. 889] all respects as the child of the person adopting," and is to "have all the rights and be subject to all the duties of the legal relation of parent and child," the right to succeed to the estate of the deceased parent must be included. (Estate of Wardell , 57 Cal. 491; see also Ross v. Ross , 129 Mass. 243.)

         2. So far as the action of Maldonado v. Maldonado affected the status of the parties and the custody of the child, it was a proceeding in rem, and service by publication in such cases is good. (Pennoyer v. Neff , 95 U.S. 714.) The recital in the judgment that the defendant was duly served with process is consistent with the proof of service. It is the fact of service which gives the court jurisdiction, -- not the proof of service, -- and the court had authority to receive the amended affidavits of service after judgment and before the roll was made up. (Mason v. Messenger, 17 Iowa 261; Rickards v. Ladd , 4 P. C. L. J. 52; Allison v. Thomas , 72 Cal. 562.)

         The affidavits of service and the recitals in the judgment are conclusive. The affidavit on application for an order of publication, and the order of publication, cannot be considered. They are no part of the roll. (Hahn v. Kelly , 34 Cal. 391; McCauley v. Fulton , 44 Cal. 355.) Belcher v. Chambers , 53 Cal. 635, is not in point. In that case, as in Pennoyer v. Neff, the judgment considered was a personal judgment against a non-resident without personal service of process. So far as the rule established in Hahn v. Kelly is applicable to proceedings in rem, it has not been overruled. The judgment referred to in that case was for money, -- the deficiency after foreclosure and sale.

         The court has jurisdiction of the defendant, and the subsequent proceedings, from the time publication of summons was complete. ( Code Civ. Proc., sec. 416.)

         The fact that judgment was rendered upon default entered before the time allowing the defendant to answer had expired rendered the judgment erroneous simply, not void. A judgment thus rendered can be attacked only upon motion or by appeal, and by the parties in interest. Maldonado is the only party aggrieved by the decree, and he is the only one who can attack it in any way. (Anderson v. Bell , 9 Cal. 321; Mitchell v. Aten , 14 P. Rep. 497.)

         3. It is contended that the order is void because it was made by the court, and not by the judge. The order appears to have been made in open court, but it is a written order, signed by the judge and filed in the proceedings. The words "by this court" in the order may be treated, we think, as surplusage. An order made by the judge at chambers in a case requiring action by the court may, for good reasons, be held to be invalid, but no such reasons can be urged in cases like this. The power which the judge might have exercised in his chambers was exercised in open court; and the fact that the clerk and sheriff were present cannot affect the validity of his judicial act.

         4. The judge who signed the order -- Hon. B. T. Williams of Ventura County -- had the same power as the judge of Los Angeles County, for whom he was acting. ( Code Civ. Proc., sec. 71) It must be presumed, in the absence of a showing to the contrary, that he was acting upon the request of the governor, or of one of the judges of the superior court of Los Angeles County.

         5. The decree was signed by the judge on October 19th, and was filed with the clerk on October 22, 1885. Thus rendered, it was binding on the parties and privies, although not entered until January 5, 1887. The clerk could not, by his failure to perform a ministerial duty, abridge the rights of any party interested. (Casement v. Ringgold , 28 Cal. 339; Gray v. Palmer , 28 Cal. 422.)

         The order is affirmed.

Summaries of

In re Estate of Newman

Supreme Court of California
Mar 1, 1888
75 Cal. 213 (Cal. 1888)
Case details for

In re Estate of Newman

Case Details

Full title:In the Matter of the Estate of BERNARD NEWMAN, Deceased

Court:Supreme Court of California

Date published: Mar 1, 1888


75 Cal. 213 (Cal. 1888)
16 P. 887

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