Opinion
32810.
DECIDED MARCH 3, 1950.
Petition to vacate order of adoption; from Fulton Superior Court — Judge Pharr. June 24, 1949.
Mamie Booth, Francis Y. Fife, for plaintiff.
The provision of the act of 1941 (Ga. L. 1941, p. 305), requiring notice of the date of the final hearing of an adoption proceeding to be mailed to the person or persons on whom the petition is required to be served in the first instance, is jurisdictional as respects the natural father of the child sought to be adopted, where the proceeding is filed against such father and charges him with abandonment. Where such notice of the final hearing is not mailed to the natural father in such a case, the judge is without jurisdiction to finally hear and determine the case.
DECIDED MARCH 3, 1950.
Julian Respess, father of Martha Jeanette Respess, filed a petition in the Superior Court of Fulton County, Georgia, seeking to have set aside an order of that court by which the petitioner's former wife and her present husband, Raymond Pat Lites, adopted the said child. The petition alleged that at the time of the adoption petitioner was incarcerated in the State prison and that such was known to his ex-wife; that he was incarcerated on November 10, 1940, and that he and his wife were living together up to that time as husband and wife; that he never at any time abandoned his former wife; that from November 10, 1940, until a divorce decree was granted his wife in September, 1943, his wife was provided a home by the petitioner's mother, brother and sister; that he never at any time abandoned his child; that he had arranged with his family for the support and maintenance of the child while he was incarcerated; that his family not only supported his wife and baby and furnished them a home until said divorce, but they put money in the bank regularly for the future education of the child; that while he was incarcerated his wife visited him each week, brought the child to see him, wrote him regularly and resided in his mother's home; that his mother, sister and brother supported his wife and child; that at all times they were well cared for and money saved for the education of the child; that as a "trusty" his warden allowed him to do odd jobs on Sundays for which he received a little pay; that he picked $20 worth of blackberries and turned the full amount over to his wife for clothes for the child; that he drew his last penny of savings and turned them over to his wife for the use of the child and herself; that his wife was divorced in September, 1943, and the court gave her the custody of the child, but according to law the decree did not give her the legal right to consent to the adoption of the child; that his mother, sister and brother would have paid the support for the child but instead spent the money allowed and more on clothing and medical bills for the child because his wife, subsequently to the divorce, was not a fit and proper mother to the child; that he never at any time consented to said adoption orally or in writing; that he was served with a copy of the adoption petition on or about May 1, 1945, while he was incarcerated in Ben Hill Convict Camp and that he immediately had his mother secure an attorney; that his attorney promised to have him brought into court on the adoption hearing; that he was not further notified as to any hearings or given an opportunity to express his wishes in the matter; that neither his mother nor any member of his family knew of the adoption decree until months later; that the petitioner is an able-bodied man, capable of earning and actually earning $45 per week; that he is anxious to support and care for his child; that since his release his entire aim and purpose is to live for the welfare of his child; that the present living conditions of the child are not suitable and proper. Prayers were that the adoption decree be declared null and void, and for other and further relief deemed proper in the premises. The court after hearing testimony denied the prayers of the petition, and the petitioner excepted.
The record shows that the petitioner was served with a copy of the original petition for adoption on May 1, 1945, at Ben Hill Convict Camp. When it appeared from the evidence that at the interlocutory hearing petitioner was represented by counsel and that the issue as to whether the petitioner had abandoned his child had presumptively been judicially determined, the court refused to retry that issue, and on the question of the child's best interest, under the evidence in this case, denied the petition.
1. The order on the adoption petition, which was served personally on Julian Respess, set July 20, 1945 as a date for hearing the petition. The hearing was held on December 16, 1946, at which time the attorney for Julian Respess appeared and urged written objections to the adoption, which included a denial of abandonment. The order setting a date for a hearing of the question whether the interlocutory decree allowing adoption should be made final was dated January 2, 1948. As to notice its provision is: "It is further ordered that the clerk mail a copy of this notice to persons at interest as provided in Acts of 1941: Frank A. Bowers, attorney for Julian Respess, father of said child." This order is construed to mean that the court adjudged notice to the attorney to be in compliance with the act of 1941, and not that he delegated to the clerk the decision of the question as to who should be served. The requirement of the mailing of notice of the date set for the final hearing (Ga. L. 1941, p. 305, Ga. Code Ann. § 74-414), is a jurisdictional prerequisite, insofar as a natural parent charged with abandonment is concerned, as is the requirement of personal service in the first instance. The General Assembly elected to require that the notice be given to the party himself and made no provision for notice to an attorney or anyone else. This is true because the findings of the judge at the interlocutory hearing are not final and irrevocably binding on the court or parties. There is no limitation on the number or kind of objections which may be urged at the final hearing and the judge on a final hearing may make findings contrary to those made at an interlocutory hearing. In such serious matters as are involved in an adoption proceeding, nothing should restrict the judge in the solemn finding involving the adoption of a child, not even his findings on an interlocutory hearing. It will be noted that the original order, with a copy of which the natural father of the child was served, showed the tentative date for the interlocutory hearing. The party so served could not know from the papers served when the final hearing would be; hence the requirement of the notice. If the court would be without jurisdiction to pass on the case if the party interested was not served personally in the first instance, giving notice as to the date of the interlocutory hearing, certainly it would be without jurisdiction to determine the case finally if strict compliance was not had with the specific requirement of notice as to the date of the final hearing when the final judgment was to be made. The general rules as to the authority of attorneys to represent clients do not apply to this case. The attorney appeared for petitioner at the interlocutory hearing and he is bound by the adjudications insofar as they could be binding. But who can say that the petitioner here would have continued to use the same lawyer when he had failed to have the petitioner at the hearing to fight for the right to retain his relationship to his child? He at least could have used his best efforts to be present at the hearing and would not have had to rely exclusively on his attorney. Since the jurisdictional prerequisite of notice of the date of the final hearing was not mailed to the petitioner, the judge was without jurisdiction to pass the final adoption order and the judge erred in denying the prayers of the petition on this ground alone.
Judgment reversed. Sutton, C. J., and Worrill, J., concur.