Welch v. Jacobsmeyer , 216 La. 333 ( 1949 )

[22] With respect to the claimed adoptions in Missouri, the petition declares:

[23] "5. Petitioners show that the said decedent had no children of her own, and that in or about the year 1908 or 1909, she regularly adopted her said nieces and nephews in accordancewith the laws of the State of Missouri, wherein the said decedent and her husband maintained their domicile, * * *.

[24] "9. Petitioners now show that they are informed and believe and on such information and belief, allege that they were formerly (formally) adopted by the said decedent and her said husband, Charles D. Summy, but they have been unable to locate any formal written Act of Adoption, but that the said decedent and her husband had voluntarily taken the said children into their home, assuming the status of parents, reared and educated the children as their own, gave them their surname, obtained the children's companionship and services, and in all things, having treated the said children as their own, they and all persons holding by, under or through them are estopped, under thelaws of Missouri, from asserting a lack of statutory adoption." (All italics and word in parenthesis mine.)

[25] It is my opinion that the foregoing not only clearly expresses the claim of appellants that they are relying on the Missouri law to establish the legality of their adoptions but that the averments on that score are allegations of fact which must be accepted as true in determining whether the petition states a cause of action.¹

[26] It is, of course, fundamental that appellees could have required appellants (under an exception of vagueness) to plead with particularity the statutes or adjudications of Missouri upon which they are depending as a predicate for the statement that they were legally adopted under the law of that state. And, if the law cited (in response to a demand be adjudged not to support the allegation, then the petition could be dismissed on an exception of no right or cause of action without the necessity of the court having a hearing on the merits. This is exactly what was held by this court on the rehearing in Succession of Marinoni, 177 La. 592, 148 So. 888, 892. There, the plaintiff alleged that her mother had entered into a common-law marriage with the decedent in Mississippi and that such marriages were valid in that state. The court sustained an exception of no cause of action and dismissed the suit but not on the ground that the law of Mississippi was not pleaded. On the contrary, the decision is based on the finding that Mississippi did not, as a matter of fact, sanction common-law marriages. The court said: "Having considered the matter further, the court has concluded that a suit founded upon what is alleged to be the law of another state is subject to dismissal on a demurrer, or an exception of no cause or right of action, if in fact the law of that state is not what the plaintiff says it is. It is true that the law of a state other than that in which the law is invoked must be proved, as a matter of fact, if the allegation as to what the law is is not demurred to. That is because the state courts do not take judicial cognizance of — because they are not supposed to know — the laws of other states. But, when a suit in a state court is founded upon what is alleged to be the law of another state, the defendant may require the plaintiff to cite specifically the statute or statutes, or judicial decision or decisions, on which the suit is founded; and, if the reference to the law relied upon discloses that the plaintiff has no cause or right of action, the court is not compelled to hear evidence on the facts alleged, before dismissing the suit. The case is then of the character of a suit founded upon a written instrument showing upon its face that the plaintiff has no cause or right of action."

[27] So, in the instant case, it may be that the law of Missouri does not support appellants' allegation but this does not furnish a valid reason for concluding that appellants have not pleaded and are not relying upon the Missouri law as a basis for the rights which they are seeking to have recognized.

[28] Moreover, even if the allegation be regarded as insufficient in failing to detail the statutes and laws of Missouri, the maintenance of the exception of no cause of action does not authorize the absolute dismissal of the suit and appellants should be given an opportunity to amend. See Brunson v. Mutual Life Insurance Company of New York, 189 La. 743,180 So. 506; Reeves v. Globe Indemnity Co. of New York, 185 La. 42,168 So. 488, McCoy v. Arkansas Natural Gas Company, 184 La. 101,165 So. 632; Lejeune v. Lejeune et al., 184 La. 837, 839,167 So. 747; Davis v. Arkansas Southern Railway Company, 117 La. 320,41 So. 587 and Bates v. Prudential Insurance Company of America,192 La. 1029, 190 So. 120, 122.

[29] I respectfully dissent.

[30] McCALEB, J., dissents from a refusal of a rehearing.

¹ See Finney v. Guy, 189 U.S. 335, 23 S.Ct. 558, 47 L.Ed. 839 and Hanna v. Lichtenhein, 225 N.Y. 579, 122 N.E. 625, cited with approval in Succession of Marinoni, 177 La. 592, 148 So. 888.