Re Mair , 61 N.D. 256 ( 1931 )

In May 1930, two of the intervenors — C.J. Martinson and Alma I. Martinson, his wife — applied to the district court of Hennepin county, Minnesota, for permission to adopt a minor, Janet Florence Mair.

On June 9, 1930, the petitioners, David E. Mair and Pearl Lou Mair his wife, applied to the county court with increased jurisdiction of Ward county for leave to adopt the child and on June 9, 1930 that court entered a decree permitting the adoption.

In July, 1930, while the proceedings were pending in Minnesota, the intervenore applied to the county court of Ward county to set aside its decree already entered, which application was denied. This application was renewed in December 1930, after the district court in Minnesota granted permission to adopt, and the application was again denied.

From the orders of the county court of Ward county refusing to vacate this decree and denying the petition to intervene the intervenors appeal to this court.

Both parties treat this matter as if an appeal could be taken to this court in such matters. If it were merely a matter of procedure we might overlook a question which has not been raised by the respondents, but § 86 of the Constitution of the state says:

"The supreme court, except as otherwise provided in this constitution, shall have appellate jurisdiction only, which shall be coextensive with the state and shall have a general superintending control over all inferior courts under such regulations and limitations as may be prescribed by law."

Unless, therefore, some method be prescribed by law whereby this court may exercise "general superintending control" or some method of appeal be prescribed, this court is not in position to assume jurisdiction.

Under the provisions of § 4446 of the Supplement any person desiring to adopt a minor child "may petition . . . the county court having increased jurisdiction, in the county in which he is a resident, for leave to adopt" such minor child. Nowhere in the chapter of the Civil Code dealing with adoption is there any provision made for appeal to any court from the action of the court in granting or refusing to grant such adoption. Only a county court with increased jurisdiction, or a district court, may entertain such petitions. Section 8960 of the Compiled Laws deals with appeals from the county court with increased jurisdiction and this section says:

"In all actions brought under the provisions of this chapter an appeal may be taken to the supreme court of the state in the same manner and pursuant to the same rules as appeals from the district court."

There is no provision therein whatever for appeal in a proceeding like that for adoption.

The county court, as generally constituted, has no jurisdiction to entertain a petition for leave to adopt. Article 9 of the Probate Code, being §§ 8599 to 8624 of the Compiled Laws, makes provisions for appeals from the county court in probate matters. It is clear such sections are limited to appeals in probate matters only. The article is dealing with the power of the county court in the settlement of estates and guardianship; and if by any stretch of imagination it can be said to include adoption matters it will be noticed that this form of appeal is limited to appeals to the district court. See § 8599.

It is true that in this state application for leave to adopt is made to the court and not to a judge. It is therefore a judicial proceeding. See Abney v. De Loach, 84 Ala. 393, 4 So. 757; 1 C.J. 1383. But though a judicial proceeding this court cannot entertain an appeal unless provision be made for appeal. Where there is no provision for appeal then appeal does not lie. Torgerson v. Minneapolis, St. P. S. Ste. M.R. Co. 51 N.D. 745,200 N.W. 1013; Myrick v. McCabe, 5 N.D. 422, 67 N.W. 143; Whitney v. Ritz, 24 N.D. 576, 140 N.W. 676; Meyers v. Meyers, 32 Ill. App. 189; Lewis's Appeal, 6 Sadler (Pa.) 79, 10 A. 126.

In Vandermis v. Gilbert, 10 Pa. Super. 570, it is said: "No provision is made for an appeal in adoption . . . and review can only be had by writ of certiorari" in that state. In Dixon v. Haslett, 232 Ill. App. 152, it is held that a "writ of error will not lie to review the judgment of the county court in adoption proceedings, where no property rights or rights of personal liberty are involved, adoption proceedings being purely statutory, there being no statutory provision for appeal or writ of error." See also Freeland v. Weed, 75 Ind. App. 273, 128 N.E. 656; Re Young,259 Pa. 573, 103 A. 344.

Re Hughes, 88 Okla. 257, 213 P. 79, says: "There is no specific statute providing for appeals to the supreme court from the action of the county court in adoption proceedings;" and further says, "An order of the county court permitting the adoption of an infant child is conclusive, so far as that court is concerned. Such court has no further jurisdiction in the matter." Petitions for adoption are addressed to the county court or probate court in Oklahoma and in Kansas, and Re Bush,47 Kan. 264, 27 P. 1003, furnishes the second quotation from the Oklahoma opinion.

It may be the court which granted the decree has the power to revoke it upon proper showing, though there is no statutory provision for revocation nor any provision for appeal from a refusal to revoke. This does not say however, that the intervenors are without remedy. A suit in equity to set aside adoption, an application for a writ of habeas corpus or for a writ of error, and other remedies have been entertained by the courts to test the validity of adoption proceedings. We are not required to pass upon the availability of these remedies. Without statutory provision for an appeal this court has no jurisdiction to entertain the appeal herein and therefore it is dismissed.

CHRISTIANSON, Ch. J., and NUESSLE, and BURKE, JJ., concur.