Moseley v. . Deans

24 S.E.2d 630, 222 N.C. 731, 1943 N.C. LEXIS 415

• Court: Supreme Court of North Carolina
• Decided: March 24, 1943
• Status: Published

Opinion

Devin, J.

The question presented by the appeal is whether the judgment rendered in the proceeding instituted by Elisha Moseley and his wife for the adoption of Ruby Belle Tilghman, daughter of Luther Tilghman, was sufficient in law to create the relationship of parent and child between petitioners and Ruby Belle Tilghman and to constitute the latter the heir of the adopting parent.

Elisha Moseley, from whom the land descended and the petitioner in the adoption proceeding, died intestate with no natural child surviving him. The plaintiffs are the brothers and sister and representatives of deceased brothers of Elisha Moseley. The mother of the child Ruby Belle Tilghman died before the institution of the adoption proceedings.

The plaintiffs challenge the validity of the adoption proceedings on four grounds: (1) That the summons was void for want of seal; (2) that the consent of Luther was never filed; (3) that, if the words on the back of the summons be treated as an answer and voluntary appearance, they were written by the attorney for the petitioners; and (4) that no hearing was had by the clerk and judgment rendered upon the allegations of the petition.

None of these objections can be sustained. While the statute (C. S., 476) requires that a summons directed to the sheriff of a county other than that from which it is issued shall be attested by the seal of the court, the absence of a seal would not invalidate a judgment where service has been accepted and the defendant has voluntarily appeared. Stancill v. Gay, 92 N. C., 455; Caldwell v. Wilson, 121 N. C., 425 (453), 28 S. E., 554; Rector v. Logging Co., 179 N. C., 59, 101 S. E., 502. The purpose of judicial process is to give notice, and its proper service brings tbe party within the jurisdiction of the court from which the process issued, and hence acceptance of notice and waiver of service by an officer and voluntary appearance in court dispenses with service. Irregularity in the form of the summons is waived. Peoples v. Norwood, 94 N. C., 167; S. v. Jones, 88 N. C., 683. The statute declares that the voluntary appearance of a defendant is equivalent to personal service (C. S., 490), and that the written admission of the defendant constitutes proof of service (C. S., 489). “A general appearance cures all defects and irregularities in the process.” Harris v. Bennett, 160 N. C., 339, 76 S. E., 217.

The pertinent provisions of the statutes in force at the time of the institution of the adoption proceedings in this case required that in order to constitute a valid adoption petition be filed in the Superior Court, setting forth the material facts, including the name and age of the child and the names of the child’s parents, and that the living parent must be made a party of record. C. S., 182 and 183. The statute also provided that “upon the filing of such petition, and with the consent of the parent or parents, if living,” the court should have power to sanction and allow the adoption by an order to that effect. C. S., 184. Here the only living parent of Ruby Belle Tilghman was made party and signed on the-back of the summons an admission of service of the summons, together with a copy of the petition, and declared in response to the petition that he had no objection to the ends thereby sought, to wit, the adoption of his daughter by petitioners. This must be understood to constitute both acceptance of service of process and voluntary appearance and submission of himself to the court’s jurisdiction, as well as signifying in writing his consent to the adoption. It was in effect an answer to the petition. The petitioners having filed proper petition, duly verified, and both notice to and consent of the surviving parent appearing, the court had jurisdiction of the subject matter and of the persons necessary to an adoption, and was clothed with the power to sanction the adoption by an order to that effect. The defects in the adoption proceedings held fatal in Truelove v. Parker, 191 N. C., 436, 132 S. E., 295; Ward v. Howard, 217 N. C., 201, 7 S. E. (2d), 625; and In re Holder, 218 N. C., 136, 10 S. E. (2d), 620, do not appear on the record of this case.

Though some of the words .appearing on the back of the summons were written by counsel for petitioners, these were adopted by the voluntary act of Luther Tilghman, the father, by signing his- name thereunder and by adding other words in his own handwriting signifying his consent to tbe adoption. It was upon consideration of tbe father’s voluntary appearance and written statement tbat judgment was rendered, tbe clerk being careful to incorporate in bis decree tbe father’s expressed understanding tbat this did not sever tbe ties of affection between him and bis motherless daughter.

We do not regard tbe action of tbe petitioners’ counsel in writing on tbe back of tbe summons tbe form for acceptance of service, to be used by tbe father in case be so elected, as sufficient to destroy tbe legal effect of tbe acceptance of service. Here there was nothing to indicate tbat Luther Tilghman was unduly influenced by petitioners’ counsel, or thereby “thrown off bis guard.” Moore v. Gidney, 75 N. C., 34; Patrick v. Bryan, 202 N. C., 62, 162 S. E., 207; Gilliam v. Saunders, 204 N. C., 206, 167 S. E., 799. No fraud or imposition is alleged or shown. Presumably tbe petitioners knew tbe father was consenting to tbe adoption, or tbe petition would not have been filed. While tbe decisions of this Court are to tbe effect tbat a judgment in an adversary proceeding will not be allowed to stand when it appears tbat tbe same attorney represented both plaintiff and defendant in tbe action (Kerr v. Mosley, 152 N. C., 223, 67 S. E., 482; Arrington v. Arrington, 116 N. C., 170, 21 S. E., 181; Gooch v. Peebles, 105 N. C., 411, 11 S. E., 415), we do not think tbat principle applicable here. Tbe facts of this case are substantially different from those in Molyneux v. Huey, 81 N. C., 106, where counsel for both plaintiffs and defendant, who bad antagonistic interests, advised defendant to confess judgment when a defense was available; or Gooch v. Peebles, 105 N. C., 411, 11 S. E., 415, where tbe same 'attorney attempted to represent conflicting interests in litigation at tbe same time; or Cotton Mills v. Cotton Mills, 116 N. C., 647, 21 S. E., 431, where upon motion of an attorney judgment was entered against tbe party for whom be appeared; or Arrington v. Arrington, supra, where tbe attorney for executors and devisees also represented claimants against tbe estate and procured judgment; or Marcom v. Wyatt, 117 N. C., 129, 23 S. E., 169, where plaintiff’s attorney drew tbe answer for tbe guardian ad litem for tbe defendant; or Johnson v. Johnson, 141 N. C., 91, 53 S. E., 623, where separate counsel for plaintiff' and defendant joined in same motion to set aside a judgment annulling a marriage; or Patrick v. Bryan, supra, where counsel for defendant through court action arranged a compromise settlement for an injury to an infant. In tbe last case this Court declined to set aside tbe judgment. See also Henry v. Hilliard, 120 N. C., 479, 27 S. E., 130; Weeks on Attorneys, sec. 271; Thornton on Attorneys, sees. 174, 175; 5 Am. Jur., 297.

In adoption proceedings tbe statute requires tbat tbe parent be made party of record, and also tbat be shall consent to tbe adoption prayed for by petitioner. Thus, tbe concurrence of all parties is contemplated by tbe statute, and tbeir agreement, in tbe absence of imposition or fraud, is not to be regarded as adversely affecting tbe validity of tbe proceeding. It may be noted that Lutber Tilgbman was present at tbe trial below and bis offer to testify for tbe defendants was declined by tbe court, since its ruling on tbe record would not bave been affected by testimony in support of defendants’ contentions.

Here it is made to appear from tbe record that tbe surviving parent was made a party to tbe proceeding, that be accepted service of tbe summons and tbe petition, and, with knowledge of tbe contents of tbe petition and its purpose to legalize tbe adoption of bis daughter, responded thereto by a statement to tbe court in writing that be bad no objection to tbe adoption, with tbe understanding this did not prevent bis seeing bis child when be desired. Hence, nothing else appearing, it would seem that tbe requirements of tbe statute have been substantially complied with. Tbe bearing before tbe clerk was presumed to bave been in all respects regular, and on its face tbe judgment is apparently effectual for tbe purposes therein decreed.

On tbe record before us, we conclude that tbe court .below was in error in adjudging tbe adoption proceedings void and entering judgment for tbe plaintiffs.

Reversed.