The record-union., 1891-02-19
SUPREME COURT DECISIONS.
Filled February 8, 1911

EX PARTE CLARK
HABEAS CORPUS.
Petitioner is the mother of Charles
Henry Clark, a minor, and the respond
ents, who are husband and wife. claim
that he has become their child by
adoption. This claim is based upon an
order made November 16, 1888, by Hon.
John +. Finn, one of the Judges Of the
Superior Court of the City and County OF
San Francisco. Attached to the order is
written consent signed by James p.
the child, consenting that ''said Charles
Henry Clark may be adopted by Jacob
Reulein. Following this is written
agreement and consent signed by DaUid
Reulein and Mrs. Katie Reulein, in
which the latter consents that David Reu-
lein might adopt the child, and in which
David Reulein agrees to adopt the child
and treat him thereafter i'll all respects as
his own lawful child. The order Of the
Judge recites that the parents, James p.
and Annie e. Clark, and Jacob Reulein
and Katie Reulein, his wife, appeared be-
fore him bringing with them said Charles
Henry Clark, aged two years and eleven
months; that he examined each of said
persons separately, and from such eX-
animation found that Jacob Reulein was
deSirous of adopting said Charles; that
his wife, Katie, consented to such adop-
ton, and that it was for the best Interests
ofthe child that such adoption should take
place; that the parents having signed the
necessary consent and said Jacob Reulein
having executed the proper agreement, il
was, therefore, ordered that said Charles
Henry Clark should thenceforth be re-
garded and treated in all respects as the
child of said Jacob Reulein.
The petitioner herein alleges that the
child is restrained of his liberty by John
d. Reulein and Katie Reulein. The writ
was addressed to them, and an answer
has been filed signed by John ID. Reulein
and Katie Reulein, admitting that they
hold the custody of the child, and claim
ing the right to do so under the order
above referred to.
1t will be observed that the parents con-
sented to the adoption of their child by
Jacob Reulein. that the agreement to
adopt is signed by DaUid Reulein; and
that the order of the court gives the child
to Jacob Reulein. There is nothing in
the record of the proceeding to show that
the names Jacob Reulein, David Reulein
and John d. Reulein indicate one and the
same person.
In our opinion the order is void, and
affords respondents no warrant for the
detention of the child. 1t confers nc
right upon them, and is manifestly toe
uncertain, when read in connection with
the agreements and consents upon which
it was based, to render any one liable as
the parent by adoption-especially one
whose name does not appear in the record
at all.
There is another objection which is
fatal to the validity of the proceeding.
Section 226, G. c., provides that all the
persons interested must appear before
the Judge of the Superior Court Of the
county aChere the person adopting resides.
There is nothing in the order or in any
of the papers referred to, showing that
Jacob Reulein, or David Reulein, was a
resident of the City and County of San
Francisco. 1t has been held-and we
think correctly-thatin in cases of this kind,
the power of the court being special, and
not exercised according to the course OF
the common law, its decisions must be
regarded and treated like those of courts
of limited and special jurisdiction; and
that jurisdiction in such cases, although
the court be one of general jurisdiction.
must appear by the record, as to botli
subject-matter and the person. (Furge-
son VS.. Jones, II Or. 204).
We have held that our law of adoption
is not unconstitutional Estate of Stevens,
SO Cal. 3221, but to acquire any right I'M
der it its provisions must be strictly
followed, and all doubts in controversies
between the natural and the adopting
parents should be resolved in favor of the
former. y child by adoption cannot in
herit from the adopting parent unless the
act of adoption has been done in strict ac-
cordance with the statute. No matter
how persuasive may be the equities OF
the child'S case, or how clear the inten-
ton of all parties, it must appear that the
statutory conditions have been strictly
performed, otherwise the relation never
existed, and the right to inherit never
was acquired. The right of adoption is
purely statutory. 1t was unknown to
the common law, and as the right when
ap0n1rad nndnr Sfatntn nc a
permanent transfer of the natural rights
of the parent, it is repugnant to the prin-
clpleS of the common law, and one who
claims that such a change has occurred
must show that every requirement of the
statute has been strictly complied with.
1t cannot be said that one condition is
more important than another. (Tyle VS..
Reynolds, 53 Ia. 146; Shearer VS.. Weaver
56 Id. $751;
1t was stated on the argument that pro-
ceedlngs were pending before Judge Finn
to amend the record so as to show that
the respondent, John d. Reulein, is the
same person referred to in the proceed
ings as Jacob Reulein and David Reu-
lein. Assuming that the power to amend
the record as suggested eXistS-a matter
upon which we express no opinion-we
must on hd6eds corpus take the record as
we find it, and determine the rights OF
the parties accordingly.
Counsel for respondents earnestly urge
the court to consider that the claim of re-
spondentS has been acquiesced in for
several years by the petitioner that re-
spondents have treated the child we'll
that warm affection has sprung up be-
tween him and themselves; that peti-
toner practically abandoned her child
when SIS consented that the order oi
adoption might be made; and asks per-
mission to prove that respondents are in
every, sense more worthy. to have the
custody of the child than the petitioner
is. But there can be no estoppel in such
a case, and the fitness relatively of the
respective parties to care for the child is
not proper subject of inquiry in this
proceeding. 1t is conceded that botl
parties are competent and fit persons to
care for the child.
1t is doubtless true. as claimed by re-
spondents, that parent is not entitled to
the custody of a child who is old enough
to work and care for himself, after con-
senting To his emancipation, but there is
no basis for any such claim in this case
The minor is u young child, incapable Of
caring for himself, and there is no pre-
tense that the respondents have any al,-
thority over him other than such as is
conferred by the order referred to.
1t is ordered that the respondents, John
ID. Reulein and Katie Reulein, forthwith
restore TO the petitioner herein the care
custody and control of said Charles Henry
Clark PATERsoS, J.
We concur:
De HAVEN, j.,
HARRISON, j.,
SHARPSTETN, j.,
MCFARLAND, j.,
GARoUTTE, j.,
BEATTY, G. j.
Filed February II, 1S9l.1