« ForrigeFortsett »
time were invalid and could not be enforced, , Schaff (C. C. A.) 275 F. 769, 21 A. L. R. 1466, for the reason that all contracts are subject the question whether a strike in the plant to the possibility that they may, by the ex- of the shipper which prevented him from ercise of its constitutional power by the leg- moving cars, and the order of the sheriff for. islative authority when the public interest bidding any attempt to move them on acdemands it, become illegal. Hoke v. United count of the strike, would relieve the shipper States, supra; Louisville & Nashville Rail- from liability for demurrage charges, was road Co. v. Mottley, 219 U. S. 467, 31 S. Ct. presented. The facts in the case were very 265, 55 L. Ed. 297, 34 L. R. A. (N. S.) 671; similar to the facts in the present case. The Hite v. Cincinnati, Indianapolis & Western United States Circuit Court of Appeals for Railroad Co., 284 Ill. 297, 119 N. E. 904; the Eighth Circuit affirmed the judgment Bullard v. Northern Pacific Railroad Co., 10 against the defendant, referring in its opinMont. 168, 25 P. 120, 11 L. R. A. 246.
ion to the holding of the Interstate Com Since the demurrage was a proper ter- merce Commission in Conference Ruling No. minal charge, for which the appellant was lia- 8, declaring that: ble as a part of the transportation of the cars, it was payable by the appellant in accordance carriers from the obligation of tariffs provid
“The Commission has no power to release with the demurrage rules and the average ing for demurrage charges, on the ground that agreement and it was the duty of the appel such charges have been occasioned by a strike," lee to collect it unless the existence of the strike excused the payment. The rules make
-and concluding: some exceptions to demurrage charges, such as in case of certain weather conditions, de
"In view of the prohibitions of the statute, lay or irregularity of the carrier in delivery, it is clear that courts are equally without power resulting in the bunching of cars errors in to release parties from the obligation of tariffs notices or other railroad errors, none of which providing for demurrage charges on the ground apply to the circumstances of this case, but that such charges have been occasioned by a no mention is made of failure to load or un
strike. Congress alone has the power to write load because of a strike. The duty of the such an exception into the statute." consignee to unload is positive. Certain exceptions are stated. The duty to unload is In Southern Railway Co. v. White, 284 F. therefore absolute in the absence of the ex- 560, 26 A. L. R. 1429, the United States Cirpressed exceptions. The appellant claims cuit Court of Appeals for the Sixth Circuit that the delay was without its fault, that held that a shipper who was prevented from the charge is in the nature of a penalty im- returning cars within the time fixed by the posed by law, that it had no voice in the demurrage rules for loading because of the making of the rules, and that the construc- destruction of a bridge, caused by an untion of the rules which denies any defense precedented storm, between the loading point not provided for in the rules is a violation of his logging railroad and the connection of the constitutional prohibition of the dep- with the railway from which the cars were rivation of property without due process of received, was relieved from demurrage while law. It is true that the rules and rates of the impossibility of returning the cars con. demurrage were established by the schedule tinued. This was on the ground that the filed with the Interstate Commerce Commis- storm was of such extraordinary character sion and approved by it, and the defendant and violence that the destruction of the had no more to do with making them than bridge should be regarded as an act of God, with making the other charges constituting the court saying: the whole charge for transportation. The
"We think it is a safe statement of the demurrage was a part of the charge for general rule to say that when a duty is imposed transportation. The approval of the sched-by law, and its performance becomes impossiule by the Commission is conclusive that the ble on account of an act of God, there can be charge was reasonable. The liability of the no recovery of damages for the breach.” appellant must be determined according to the terms of the contract which by the acts of the parties under the act of Congress was
Whether this decision was right or not, it entered into. It was the contract of the par
is not applicable to this case.
The demurrage accrued on account of cars ties though its terms were prescribed by Con- delivered by the Peoria & Pekin Union Railgress under its power to regulate commerce road Company and the Peoria Railway Terbetween the states, and in so doing to in-minal Company during the war, while the terfere with the right of private contract railroads were being operated by the Direcwhen the public interest in interstate transtor General of Railroads under the proclamaportation demands it. That contract did not tion of the President and the provisions of excuse the appellant from liability for de- the Federal Control Act. It is immaterial murrage because of interference with its whether the demurrage accrued on interstate business by a strike.
or intrastate shipments, because authority In the case of Sinclair Refining Co. v. to enforce intrastate rates as well as inter
(148 N.E.) state rates was conferred on the President by 6. Adoption om 14-Only Inquiry on collateral the act of Congress of August 29, 1916, and attack of adoption proceedings is whether the act of March 21, 1918-the Federal Con county court had jurisdiction. trol Act.
Only inquiry on collateral attack of adopThe judgment will be affirmed.
tion proceedings is whether county court had Judgment affirmed.
jurisdiction to enter decree.
Decree of adoption is not valid unless court (317 III. 231)
had jurisdiction of subject-matter and person. KEAL et al. v. RHYDDERCK et al. (No. 16486.)
8. Courts 33—Record must show court's
authority, where exercising a special statu(Supreme Court of Illinois. April 24, 1925.
tory jurisdiction. Rehearing Denied June 9, 1925.)
Where court is exercising a special statu
tory jurisdiction, record must show on its face 1. Adoption Com 7When valid decree of adop- that court had authority to act. tion may be entered stated. No valid decree of adoption can be entered,
9. Courts em 36Judgment m496Jurisdicwhere both parents of child are living and have
tion not presumed, where court exercising not been deprived of its custody, and child is
special statutory jurisdiction, and, if not apunder 14 years of age, until petition for adop
pearing, judgment may be collaterally at. tion states and court finds that parents con
tacked. sent to adoption, or that one of parents con Where court exercises a special statutory sents and other is unfit to have custody of jurisdiction, jurisdiction is never presumed, child, or that both parents are unfit because of and, if it does not appear, judgment may be depravities, open and notorious adultery or for- void and subject to collateral attack. nication, or habitual drunkenness for space of one year prior to filing of petition, or extreme 10. Courts en 159–Rules of courts of limited and repeated cruelty to child, abandonment of jurisdiction applicable to any court exercis. child or its desertion for more than six months ing special statutory jurisdiction. next preceding filing of petition.
Court exercising a special statutory juris2. Adoption Om II, 12—Parents must be made diction is governed by same rules as courts of
11. Adoption Call-Court without jurisdicParents of child, sought to be adopted, tion unless petition conforming to statute must be made defendants to petition by name
was filed. and notified of proceedings by summons, if res
Court was without jurisdiction of adoption idents of state, summons to be made returnable at any time within 20 days after its date, or if proceedings, unless petition conforming to renonresidents or their residence be unknown, by
quirements of Adoption Act was filed. publication once in some newspaper of general 12. Adoption Owll-Court held without juris. circulation published in county, which notice
diction of adoption proceedings, where peti. must bear date of publication and must notify tion did not state consent, or that parents defendants to answer within 20 days after such
were unfit, etc.
Court was without jurisdiction of adoption 3. Adoption. I-Validity of decree of adop- proceedings under Adoption Act, 88 2, 3, where tion dependent on strict compliance with stat. petition did not state that parents of child ute.
consented to adoption of their child by petitionAdoption proceedings being statutory, va
ers, or that parents were unfit to have custody lidity of decree of adoption depends on compli- of child for any of reasons stated in section 3, ance with every essential requirement of stat- and it appeared from petition that mother of ute authorizing it.
child was living and insane. 4. Adoption m3_Statute conferring right of 13. Adoption Omw 12–Court held without juris. adoption to be strictly construed.
diction of mother in adoption proceedings,
where summons served was returnable 27 Adoption being in derogation of common law, statute conferring right must be strictly
days after date. construed.
Court was without jurisdiction of mother
of child in adoption proceedings under Adoption 5. Adoption 21–Rights of inheritance of Act, where summons served on her was returnone sustaining no blood relation to intestate able 27 days after its date. can only be acquired in manner provided by statute.
14. Courts mw 32-Jurisdiction of person not Adoption statute having provided specifical
acquired, where notice not given as required ly means by which one who sustains no blood by law. relation to intestate may inherit his property,
Court does not acquire jurisdiction of the rights of inheritance can only be acquired in person, where record shows that notice was not
given as required by law. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
15. Adoption om 12–Court held without juris. , name, age, sex, and residence of the child, diction of nonresident father of child in adop- the name of the mother and that she was tion proceedings, in view of defects in publi- insane and confined in the Kankakee State cation of notice.
Hospital, the name of the father and that his Court was without jurisdiction of nonresi- residence was unknown, and that the child dent father of child in adoption proceedings had no legal guardian. The father and under Adoption Act, where notice of proceed, mother of the child were made defendants ings was published on three different dates and bore a date different from all dates of publica- to the petition, and summons was issued tion, and last date was less than 20 days be-commanding them to appear March 27, 1916, fore decree was entered.
and answer the petition. Summons was
served upon the mother, Ellen R. Rhydderck, 16. Adoption om 14-Decree held subject to at. March 4, 1916, by the sheriff of Kankakee tack at any time.
county. The sheriff of Douglas county made Decree of adoption entered without juris- a return on the summons for the father, diction of subject matter or persons of defend- David Rhydderck, that he could not be found ants to petition is coram non judice, and sub- in his county. Thereupon the county clerk ject to attack at any time.
caused to be published in the Tuscola Jour17. Estoppel Cw52 Must be mutual to be nal, a weekly newspaper, a notice to David binding.
Rhydderck and others stating that the peEstoppels must be mutual to be binding.
tition to adopt Thomas John Rhydderck 18. Estoppel w97—One not bound by estop. was filed, and containing this warning: pel cannot take advantage of it.
"Now unless you appear within 20 days after An estoppel must bind, and one who is not the date of this notice, and show cause against bound by it cannot take advantage of it. such application, the petition shall be taken as,
confessed and a decree of adoption entered." 19. Infants 55—Generally, estoppel in pais inapplicable to infants.
This notice was dated March 1, 1916, and Generally, doctrine of estoppel in pais is inapplicable to infants.
was published on the second, ninth and six
teenth days of the same month. March 27, a 20. Adoption om 16–Doctrine of estoppel in guardian ad litem appointed for Ellen R.
pais held inapplicable in proceedings to re- Rhydderck filed a formal answer to the pevoke adoption.
tition, and the petitioners filed a formal Doctrine of estoppel in pais held inapplicable in proceedings by adoptive mother and heirs replication thereto. David Rhydderck was of adoptive father to revoke adoption proceed- defaulted. After hearing eridence the court ings, since doctrine was inapplicable to child, entered its decree finding that it had jurisand hence element of mutuality was wanting. diction of the subject-matter and of the parFarmer, Stone, and Heard, JJ., dissenting. ties; that the mother of the child was in
sane and confined in the Kankakee State Error to Circuit Court, Douglas County; Hospital; that the residence of the father Franklin H. Boggs, Judge.
of the child was unknown; that the child
was in the custody of James W. and Ruth Bill for partition by Frederick Harry Keal and others against Thomas John Rhydderck and proper persons and of sufficient ability
B. Keal, husband and wife, who were fit and others. Decree for defendants, and com
to furnish nurture and education for the plainants bring error. Reversed and re
child; that said persons desired to adopt the manded.
child, and decreeing the child to be their W. W. Reeves, S. S. Du Hamel, and P. adopted child and changing his name to M. Moore, all of Tuscola, and C. H. Swick, Thomas Ervin Keal. August 6, 1922, James of Champaign, for plaintiffs in error. W. Keal was killed in an automobile acci
John H. Chadwick, of Tuscola, guardian dent. He died intestate, seized of farm lands ad litem, for defendants in error.
located in Douglas county. In addition to
the child, Thomas, living in his home at the THOMPSON, J. The defendant in error time of his death, Keal left surviving him Thomas John Rhydderck (now known as his widow, Ruth B. Keal, his sisters, Mae Thomas Ervin Keal) was born October 27, Osborn, Cora Cox, and Gertrude Shaffer, his 1909. In February, 1910, his mother was brothers, Frederick and George, a half-brothadjudged insane and committed to the Kan- er, Earl, and two nieces, daughters of a dekakee State Hospital, and Thomas was placed ceased sister. There was filed in the circuit by his father in the care of the Illinois Chil- court of Douglas county a bill for the parti. dren's Home and Aid Society. In August, tion of the real estate of which Keal died 1910, the society delivered Thomas to James seized, alleging that the adoption proceedW. and Ruth B. Keal, husband and wife, of ings were void, and that Thomas J. RhydTuscola. On March 1, 1916, they filed in the derck is not the adopted son of James W. county court of Douglas county a petition to and Ruth B. Keal, and praying that the adopt the child. The petition stated the lands be partitioned among the widow and
For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
(148 N.E.) the brothers and sisters of deceased. A de- , bard, 38 Idaho, 451, 221 P. 1107. Our statcree was entered denying the prayer of the ute having provided specifically the means by bill, and this writ of error is prosecuted to which one sustaining no blood relation to review that decree.
an intestate may inherit his property, the [1, 2] Where the parents of a child are rights of inheritance must be acquired in living and there has been no proceeding in that manner and can be acquired in no other court depriving them of the custody of their way. Shearer v. Weaver, 56 Iowa, 578, 9 child, there can be no valid decree of adop- N. W. 907. In Ex parte Clark, 87 Cal. 638, tion entered unless a verified petition be 25 P. 967, it is said: filed in the circuit or county court of the
"A child by adoption cannot inherit from the county in which the person or persons seek adopting parent unless the act of adoption has ing to adopt the child reside or where the been done in strict accordance with the statute. child is found, stating (1) the name, sex, age, No matter how persuasive may be the equities and residence of the child; (2) the name and of the child's case, or how clear the intention residence of the person having the custody of all parties, it must appear that the statutory of the child; (3) the name and residence of conditions have been strictly performed, otherthe parents of the child; (4) if the name and wise the relation never existed, and the right
to inherit never was acquired. The right of residence of any of such persons are not adoption is purely statutory. It was unknown known, the fact that they are unknown; to the common law, and as the right when acand (5) one or more causes or conditions pre- | quired under our statute operates as a permascribed by the statute as prerequisite fornent transfer of the natural rights of the pargranting of the decree. Where, as in this ent, it is repugnant to the principles of the case, both parents are living and have not common law, and one who claims that such a been deprived of the custody of the child, change has occurred must show that every reand the child is under 14 years of age, no plied with. It cannot be said that one condi
quirement of the statute has been strictly comvalid decree of adoption can be entered un- tion is more important than another.” til the petition states and the court finds (1) that the parents consent to the adoption, or [6-10] The attack made on the proceed(2) that one parent consents and the other is ings to adopt the child being collateral, the unfit to have the custody of the child, or only inquiry proper to be made is whether (3) that both parents are unfit, the grounds the county court had jurisdiction to enter of unfitness being (a) depravity, (b) open and the decree. Before the decree can have vinotorious adultery or fornication, (c) habit- tality the court must have jurisdiction of ual drunkenness for the space of one year the subject-matter and of the person. Rabprior to the filing of the petition, (d) extreme bitt v. Weber & Co., 297 Ill. 491, 130 N. E. and repeated cruelty to the child, (e) aban- 787. Where a court is exercising a special donment of the child, or (n) desertion of the statutory jurisdiction, the record must show child for more than six months next preced- upon its face that the case is one where the ing the filing of the petition. The parents court has authority to act. Jurisdiction in must be made defendants to the petition by such cases is never presumed, and if it does name and must be notified of the proceed- not appear the judgment will be void and ings by summons if residents of the state, subject to collateral attack. Rice v. Travis, the summons to be made returnable at any 216 Ill. 249, 74 N. E. 801; Payson v. People, time within 20 days after its date, or if non- | 175 Ill. 267, 51 N. E. 588; Haywood v. Colresidents or their residence be unknown, by lins, 60 11. 328. Whatever the rank of the publication once in some newspaper of gen- court exercising a special statutory jurisdiceral circulation published in the county. If tion, it is governed by the same rules as service be by publication, the notice must courts of limited jurisdiction.
Calkins v. tear the date of publication and must notify Calkins, 229 Ill. 68, 82 N. E. 242; Chicago & the defendant that he must answer within 20 Northwestern Railway Co. v. Galt, 133 ini. days after such date.
657, 23 N. E. 425, 24 N. E. 674; Johnson v. [3-5] The right to adopt a child and the Von Kettler, 84 Ill. 315. In Kennedy v. right of a person to be adopted as the child Borah, 226 Ill. 243, 80 N. E. 767, we said: of another was unknown to the common law. “The jurisdiction of county courts to enterIt was taken from the civil law and intro- tain a petition for the adoption of a child and duced into this country by statute. The adop- to declare such child to be the adopted child of tion proceeding being statutory, the validity the petitioner and capable of inheriting his ar of a decree of adoption depends upon the her estate is a special statutory one unknown compliance with every essential requirement to the common law, and falls within the rule of the statute authorizing it. In re Sharon's that nothing is presumed to be within the ju
risdiction of the court which does not appear Estate, 179 Cal. 447, 177 P. 283. Being
to be within the same." in derogation of the common law, the statute conferring the right of adoption must be [11, 12] In order to give the court jurisstrictly construed. Watts v. Dull, 184 Ill. 86, diction of the subject-matter it was neces. 56 N. E. 303, 75 Am. St. Rep. 141; Keegan sary that a petition conforming to the reV. Geraghty, 101 III. 26; Vaughan v. Hub- quirements of the statute be filed. Kennedy
v. Borah, supra; Watts v. Dull, supra ; Taber | 98, 87 Am. Dec. 293. The statute requires V. Douglass, 101 Me. 363, 64 Atl. 653. The that defendants, who reside outside the state petition filed in this case did not state that or whose residence is unknown, shall be nothe parents, or either of them, consented tified of the proceeding by publication of to the adoption of their child by the peti- an adoption notice, which shall be published tioners, or that the parents, or either of once and dated the day of publication. The them, was unfit to have the custody of their notice in this case was published on three child for any of the reasons stated in sec-different dates and bore a date different tion 3 of the Adoption Act (Smith-Hurd from all these dates of publication. The Rev. St. 1923, c. 4). Section 2 of the act last date of publication was March 16, 1916. specifically requires that the petition shall Twenty days after the date of this publicastate one or more of the conditions which tion was April 5, and therefore the father, section 3 requires shall be found before an David Rhydderck, was not in default March adoption can be decreed. The petition not 27, when the default decree was entered. only fails to state the necessary facts to con
on- (16] It is contended by the guardian ad fer jurisdiction upon the court, but it states litem appointed by the court to represent the a fact that shows conclusively that the court child in this proceeding, that the adoptive could not, under the law as it now exists in mother and the heirs of the adoptive father this state, acquire jurisdiction of the subject are estopped from asserting the invalidity of matter. It appears from the petition that the adoption proceedings. The decree of the the mother of the child is living and is in-county court declaring Thomas John Rhyd
Being non compos mentis she could derck to be the adopted child of James W. not consent to the adoption of her child, nor and Ruth B. Keal, being entered without could she be guilty of any of the offenses jurisdiction of the subject-matter or of the which would render her unfit to have the persons of the defendants to the petition, is custody of her child. Whether the law coram non judice and is subject to attack should permit the child of an insane person by any person at any time. Bartholow v. to be taken from him and given to another Davies, supra; Rice v. Travis, supra; Hay. by adoption is a question for the Legislature wood v. Collins, supra. It is clear that there to decide. To date no provision has been is no estoppel by judgment, and the question made for such a proceeding, and it follows remains whether there is an estoppel in pais. that none can be had. Since the court had (17-20] To be binding, estoppels must be no jurisdiction of the subject-matter, its or- mutual. . Chicago & Alton Railroad Co. v. der is void and is not the foundation of any Keegan, 152 111. 413, 39 N. E. 33; City of right. Bartholow v. Davies, 276 Ill. 505, 114 Houston v. Southwestern Bell Telephone N. E. 1017.
Co., 259 U. S. 318, 42 Sup. Ct. 486, 66 L. Ed. (13-15] The decree is also void for the rea- 961. An estoppel must bind both parties, son that the court did not have jurisdiction and one who is not bound by it cannot take of the person of the father or the mother of advantage of it. First Nat. Bank v. Norththe child. People v. Seelye, 146 Ill. 189, 32 western Nat. Bank, 152 Ill. 296, 38 N. E. 739, N. E. 458; Carter v. Botts, 77 Kan. 765, 93 | 26 L. R. A. 289, 43 Am. St. Rep. 247; Mills P. 584. The Adoption Act requires that the v. Graves, 38 Ill. 455, 87 Am. Dec. 314. This resident defendants shall be notified of the rule has been applied to an adoption proproceedings by summons, which shall be ceeding. Furgeson v. Jones, 17 Or. 204, 20 P. made returnable at any time within 20 days 842, 3 L. R. A. 620, 11 Am. St. Rep. 808. In after the date thereof. The summons issued general, the doctrine of estoppel in pais has for Ellen R. Rhydderck was dated March 1, no application to infants. Wieland v. Ko1916, was served 3 days later, and was made bick, 110 Ill. 16, 51 Am. Rep. 676; Schnell returnable 27 days after its date. As the V. City of Chicago, 38 Ill. 382, 87 Am. Dec. statute required the summons to be made 304; Cobbey v. Buchanan, 48 Neb. 391, 67 N. returnable within 20 days after its date, the W. 176. Since an infant is not directly clerk had no authority to make it returnable bound by his ordinary contracts unless rati27 days after its date. The writ must there. | fied after he becomes of age, all obligations fore be regarded as a nullity, and the service in the nature of contract will not be indirectof the writ conferred no authority upon the ly enforced against him by means of an escourt to render a decree in the cause which toppel created by his conduct while still a would bind the mother of the child. Schmitt minor. 2 Pomeroy's Eq. Jur. (4th Ed.) $ 815. v. Devine, 164 Ill. 537, 45 N. E. 974; Culver There is an exception, however, to the rule v. Phelps, 130 Ill. 217, 22 N. E. 809; Rattan that the doctrine of estoppel in pais is inapV. Stone, 3 Scam. 540. Where the record plicable to infants. Lewis v. Van Cleve, 302 słows that notice was not given as required Ill. 413, 134 N. E. 804. An infant is liable, by law the court does not acquire jurisdic- when properly sued, for his tort in an action tion of the person. Forrest v. Fey, 218 Ill. which does not seek the enforcement of a con165, 75 N. E. 789, 1 L. R. A. (N. S.) 740, 109 tract or demand damages for repudiating or Am. St. Rep. 249: Clark v. Thompson, 47 Ill. for fraudulently inducing the plaintiff to 25, 95 Am. Dec. 457 ; Johnson v. Baker, 38 Ill. make a contract. To prevent a circuity of ac