Opinion
December 20, 1938.
1. CERTIORARI: Jurisdiction. On certiorari to an inferior court mere evidence is excluded and review by the Supreme Court is limited to questions of jurisdiction.
2. HABEAS CORPUS: Adoption: Collateral Attack. Where the mother of a child brought a habeas corpus proceeding for the custody of her child, she could attack collaterally a judgment of adoption which was rendered without her consent and without actual or constructive notice to her.
A motion to dismiss the action was properly overruled.
3. HABEAS CORPUS: Intervening Petition. In a habeas corpus proceeding by the mother of a child to recover it from the persons in actual custody of it, which persons were agents of the petitioner who was awarded custody under a judgment of adoption, the refusal to permit the petitioner to intervene was not prejudicial.
4. HABEAS CORPUS: Welfare of Child. In a habeas corpus proceeding by the mother of a child to recover possession of it where the files and records show the court could find that the mother had not given her written consent to the adoption of the child by a petitioner to intervene, and that she had neither actual nor constructive notice of the adoption action, the adoption judgment being void the court did not commit error in refusing to consider the welfare of the child.
WRIT QUASHED.
Roy Hamlin for relators.
(1) Under the first assignment of error, the court's attention is specifically called to the fact that a motion was filed to dismiss the writ of habeas corpus, and the specific assignments are set out in nine separately numbered paragraphs, which are shown in full in the abstract of the record, but specific attention of this court is called to paragraph 3 thereof, which is as follows: "3. That upon the application filed in this case asking for a writ of habeas corpus, the court had no right or authority to issue any writ of habeas corpus because of the limitations set out in Section 1460, R.S. 1929, wherein it is stated: `But no court, under the provisions of this chapter, shall . . . have power to inquire into the legality or . . . judgment, decree or order of any court legally constituted, etc.'" (2) On the second assignment of error, the court's attention is called to the fact that E.E. Renner was the father of the child, Ernest Raymond Renner, and in the pleading filed by the father, he sets up the fact that he was the father and that he had been given the child by a decree of adoption of the Hannibal Court of Common Pleas, and that the mother of the child had given him the possession of said child by written agreement, which was all set up in the pleading, and which is set up in the abstract of the record in this case. The court refused the father permission to enter the case as a party to the habeas corpus proceeding. The father of the child, being both the natural parent and also the parent by adoption, and the one to whom the mother had given the child by a written contract, certainly was a party in interest, necessary for the determination of this controversy. (3) The motion to quash the writ and the pleading of E.E. Renner constituted a return to the writ, both of which pleadings are verified by the party asking for the relief, and as there were no pleadings in denial or avoidance filed to this return to the writ, it has been held by the Supreme Court of Missouri, en banc, in the case of Gugenhine v. Gerk, 31 S.W.2d 2, as follows: "It follows that the averments of the return are neither denied nor avoided. In this situation the averments must be taken as true. In re Brecht, 252 Mo. 319; In re Tarter, 278 Mo. 366; State ex rel. v. Buckner, 198 Mo. App. 234; Ex parte Thornberry, 300 Mo. 661.
Elgin Fuller and Roger Hibbard for respondent.
(1) The Supreme Court, in determining this matter, should look only to the return to the writ of certiorari, and the amended return to the writ of certiorari, but only such part of the amended return which contains record entries up to the time of the issuance of the writ of certiorari. The writ of certiorari acts as a supersedeas, or stay of proceedings in the court to which it is directed, so that any pleading filed in the Hannibal Court of Common Pleas after the issuance of the writ of certiorari, as was the relators' (respondents below) motion to correct the record, should not be considered. Neither should this court look at relators' application for the writ of certiorari, nor at any evidence. State ex rel. v. Adler, 79 S.W.2d 256; 11 C.J., pp. 171, 177, 268; Hannibal St. J. Railroad Co. v. State Board of Equalization, 9 S.W.2d 638. (2) Ethel Miller was the sole legal parent of the infant child, Ernest Raymond Renner, and as such had legal right to the custody unless that right was cut off by the decree of adoption. The purported decree of adoption was void for the reason that her written consent was never given, nor was jurisdiction over her person ever obtained, nor was she ever notified of said proceedings in the manner prescribed by statute. Secs. 14074, 14076, R.S. 1929; Child Sav. Institute v. Knobel, 37 S.W.2d 925; Rochford v. Bailey, 17 S.W.2d 941; Myers v. McRay, 114 Mo. 377; Hinkle v. Lovelace, 204 Mo. 208.
Action in certiorari. Relators seek to have quashed the judgment of the Hannibal Court of Common Pleas in the habeas corpus action of Ethel Watson Miller v. Wm. J. and Hattie Peregory. In said action Ethel Watson Miller sought the custody of Ernest Raymond Renner, four and one-half years of age, who was in the actual custody of Wm. J. and Hattie Peregory. [1] On a review in certiorari, mere evidence is excluded and we are limited to questions of jurisdiction and errors appearing on the face of the record.
In the habeas corpus action respondents Wm. J. and Hattie Peregory filed a "motion to dismiss" the petition and the writ. It alleged, that the petition "does not state facts sufficient upon which to grant the writ of habeas corpus." The court overruled the motion.
In substance the petition for said writ filed on July 9, 1937, alleged that Ernest Raymond Renner, four and one-half years of age, is unlawfully deprived of his liberty by Wm. J. and Hattie Peregory; that the petitioner, Ethel Watson Miller, is the mother and sole legal parent of said child; that E.E. Renner in a petition filed in the juvenile division of the Hannibal Court of Common Pleas at the January Term, 1936, sought the adoption of said child; that a purported judgment was rendered by said court decreeing the adoption of said child by E.E. Renner; that said judgment of adoption was rendered without the written consent of the petitioner, Ethel Watson Miller, and without jurisdiction over the person of Ethel Watson Miller, as required by the adoption statute of this State in that there was no allegation in the petition for adoption that Ethel Watson Miller, the mother of said child, was a nonresident of this State; that the petitioner for adoption, E.E. Renner, made no affidavit that she was a nonresident of this State; that no summons was issued for her on which a non-est return could be made; that no return was made by an officer on which to base an order of publication, and that there was no order made by said court for the publication of notice to Ethel Watson Miller in said adoption action.
I. Relators assign error on the overruling of the "motion to dismiss." They contend that the habeas corpus action is a collateral attack on the adoption judgment of a court of competent jurisdiction and that said attack is prohibited by Secs. 1457 and 1460, Revised Statutes 1929, of the habeas corpus act.
Those sections provide that the legality of the judgment of another court cannot be inquired into in a habeas corpus action. In the instant case if the purported adoption judgment was rendered without the written consent of the mother and without actual or constructive service on her, it would not be a judgment and its legality as such could not arise. The rule is stated as follows:
"The alleged decree of adoption in the case at bar was had without the consent of or notice to the Child Saving Institute, the legal custodian of the child in question, and for that reason such alleged decree is not conclusive on such institute and may be collaterally attacked by it. The general rule that a judgment of a court of competent jurisdiction is binding until it is reversed, and that another court cannot, by means of a writ of habeas corpus, look beyond a judgment and re-examine the proceedings on which it is based, applies only to parties and privies to such judgment. It is held in Beatty v. Davenport, 45 Wn. 555, 88 P. 1109, 122 Am. St. Rep. 937, 13 Ann. Cas. 585, that a decree for the adoption of a child may be collaterally attacked by a parent in a habeas corpus proceeding to recover possession of the child, when such parent was not a party to the adoption proceedings, and had no actual or constructive notice thereof." [Child Saving Institute v. Knobel, 327 Mo. 609, 37 S.W.2d 920, l.c. 926.]
The court ruled correctly on the motion to dismiss.
II. Relators also assign error on the refusal of the court to permit E.E. Renner to file an intervening petition in the habeas corpus action.
The intervening petition presented no additional issue. In substance it alleged that Wm. J. and Hattie Peregory had the actual custody of the child as agents for E.E. Renner, and that E.E. Renner was awarded custody under a judgment of adoption rendered at the January Term, 1936, of the Hannibal Court of Common Pleas. The case was tried on the theory that the Peregorys were the agents of Renner in caring for the child and that they claimed the custody of the child under the purported judgment of adoption. The error, if any, of the trial court in refusing to permit Renner to intervene could not have been prejudicial.
III. Relators also assign error on the refusal of the court to consider the welfare of the child.
The welfare of the child was not an issue in the case. The rule is stated as follows:
"In this connection it may be well to observe that the petitioner's financial ability to support her child and her moral fitness to be intrusted with its care and custody may not be questioned for any purpose of this proceeding. As its natural and statutory guardian she is entitled to such care and custody, unless the right has been cut off by the decree of adoption. And the validity of the decree in its turn depends upon whether the statute pursuant to which it was rendered, was in all essential respects substantially complied with. . . ." [Rochford v. Bailey, 322 Mo. 1155, 17 S.W.2d 941, l.c. 943.]
It should be stated that respondents Peregory introduced in evidence all the files and records in the adoption action. From said files and records the court could find that Ethel Watson Miller had not given her written consent to the adoption of the child by Renner and that she had neither actual nor constructive notice of the adoption action. It must have so found, for it ruled the adoption judgment void and awarded to her the custody of the child.
It follows that our writ was improvidently issued and should be quashed. It is so ordered. All concur.