about to be purchased by him for his wife on motion in that court, to correct the error from the Smiths. by correcting the judgment to conform to the pleadings.

In the case of Alpers v. Schammel, 75 Cal. 590, 17 Pac. 708, the learned Supreme Court of California, in considering a judgment that had been entered against a party who was not properly included therein, reversed the judgment of the court below, and directed that the judgment should be modified by striking out the name of one Bolte, against whom judgment had been improperly rendered, and in its judgment the court says: "The

We are of the opinion this evidence was clearly competent for the purpose of showing that the chattel mortgage, at the time the transfer was made of the property from Mathilda Smith to the defendant Alda M. Miller, did not contain the clause above quoted, and that the same was inserted in the mortgage subsequent to the purchase of the property by Alda M. Miller. It is contended by the plaintiff that, as the conversation between Batterton, the attorney, and the defendant Rudolph Miller, and the exam-order denying a new trial is affirmed. The ination of the record by Mr. Batterton, was not in the presence of the plaintiff or of its agents, it is inadmissible. The question as to the change in the chattel mortgage, made subsequent to the purchase of the mortgaged property by Alda M. Miller, was a question of fact, and it was competent for the defendants to prove by the testimony of any person who had examined the chattel mortgage the fact that it had been changed by inserting the clause above referred to subsequent to the time the property was purchased by Alda M. Miller, and the fact that the same was proven by the attorney in the action, Mr. Batterton, did not affect the competency of the evidence.

[5] It is further contended by the plaintiff that the court erred in admitting, over plaintiff's objection, the three Reeves notes and chattel mortgages, and proving their payment, as these notes and mortgages had been eliminated from the case by the stipulation entered into between the parties. We are of the opinion that, although not properly admitted, the admission did not constitute reversible error; for by the stipulation it was admitted that the amount secured by the notes and mortgages had been paid since the commencement of the action. It is true that the admission of these notes and chattel mortgages incumbered the record, and that they might, with other matter printed in the abstract, have been properly omitted therefrom; but the admission of immaterial evidence, though it increases the size of the bill of exceptions, does not necessarily constitute reversible error, unless it tends in some way to prejudice the appellant, and, as before stated in this case, we fail to see how the plaintiff was prejudiced by the admission of these notes and mortgages which had been eliminated from the case by the stipula

tions.

judgment is reversed, and the cause remanded to the court below, with directions to modify the judgment in the manner pointed out, and as so modified is affirmed. But, as this modification might have been made in the court below without appeal to this court, the appellant will recover no costs on this appeal."

Clearly in the case at bar the judgment of the circuit court could have been corrected to correspond to the pleadings in the circuit court by motion, and as the same power exists in this court the judgment of the circuit court is reversed, with the direction to that court to modify its judgment by striking therefrom the name of Rudolph Miller, and rendering the judgment in favor of Alda M. Miller, and the judgment when so modified is affirmed. The order denying a new trial is affirmed, and, as the judgment could have been corrected in the circuit court without appeal to this court, the appellant will recover no costs in this appeal.

27 5.5 266
1755

CALHOUN v. BRYANT et al.
(Supreme Court of South Dakota.
1911.)

Nov. 14,

1. JUDGMENT (§_660*)-CONCLUSIVENESS-ERROR OF LAW-JURISDICTION.

Where all the interested parties to a controversy are before the court and it has authority to determine an objection to its jurisdiction, a judgment determining the controversy after pealed from, though the ruling as to jurisdicoverruling the objection is conclusive unless aption is erroneous.

[Ed. Note.-For other cases, see Judgment, Cent. Dig. § 1171; Dec. Dig. § 660.*]

2. COURTS (§ 1*) - "JURISDICTION" - NATURE

OF.

process and upon the fact that the subject-matThough jurisdiction depends on service of ter of the action is one upon which the court is [6] It is further contended by the plaintiff given authority to exercise judicial authority, that the judgment is erroneous, in that it these things do not in themselves constitute "juawards the chattel mortgage property to risdiction," since, when parties are before the court and present to it a controversy which the both defendants, although the defendant Ru- court has authority to decide, a decision approdolph Miller in his answer denied the own-priate to that question, but erroneous, is a propership of the property, and only asked that the complaint be dismissed as to him. But

this error does not constitute reversible error, as it was competent for the trial court,

er exercise of "jurisdiction."

Dig. § 1; Dec. Dig. § 1.*
[Ed. Note.-For other cases, see Courts, Cent.

For other definitions, see Words and Phrases, vol. 4, pp. 3876-3885; vol. 8, pp. 7697-7698.1

3. EXECUTORS AND ADMINISTRATORS (§ 314) | children is the same as between natural parents -DECISIONS REVIEWABLE-ORDERS OF PRO BATE COURT.

[Ed. Note. For other cases, see Adoption, SMITH, P. J. Appeal from the circuit Cent. Dig. § 41; Dec. Dig. § 22.*] court of Beadle county. The case originated 6. WORDS AND PHRASES-"STATUS"-"RIGHT." in the county court of Beadle county upon The word "status," as applied to the re- the probating of the estate of Arthur Max lationship of parent and child, husband and Moler. The facts are not in dispute and wife, or other like relation, is not synonymous with the word "right." but is to be construed are stated as follows in appellant's brief: as meaning "relationship," and hence the word "status" does not necessarily imply the existence of the right of inheritance.

sisters of his father, and Carrie L. Hearne, | Dakota govern the rights of parent and a sister of his mother.

"Carrie L. Hearne filed a petition for letters of administration in the county court of Beadle county March 29, 1907. Charles E. Bryant was appointed administrator and a final decree of distribution was entered November 20, 1907, decreeing that the three aunts were the heirs of Arthur Max Moler in equal parts and vesting the title of the land above described in the three aunts in equal parts. After the entry of this decree on the 25th day of January, 1908, Carrie L. Hearne and her husband conveyed her one-third interest in said land to Myra F. Eastman, by quitclaim deed which was duly acknowledged and recorded.

child in real estate situated in South Dakota upon adoption of the child in Illinois? Third, can a mother inherit real estate under the laws of South Dakota from her adopted child which came to him by descent from his natural ancestors?"

[1] Appellant's first contention is that the probate court was without jurisdiction to set aside the decree of distribution entered on November 20, 1907, and that said decree, not having been appealed from, became final and conclusive as to the rights of all the heirs. But, even if that be conceded to be the correct rule of law, it is not conclusive of the precise question before the court on this appeal. The record shows that on the "On the 26th day of June, 1908, the plain- 26th day of June, 1908, plaintiff, who is retiff made a motion to vacate the final decree spondent here, made a motion in the counof the county court and for leave to file ob- ty court to vacate and set aside the decree jections to the final report of the adminis- of distribution entered on the 18th day of trator. The motion was not heard until the November, 1907, which motion was based up17th of April, 1909, when the defendants on various grounds, and supported by variappeared specially and objected to the mo- ous affidavits which we deem immaterial to tion on the ground that the county court the consideration of the question involved had lost all jurisdiction of the matter. The here. Defendants, who are appellants here, objection to the jurisdiction was overruled, appeared specially and objected to this moand the defendants then filed a demurrer. tion on the ground that the county court The demurrer was overruled, and the de- had lost jurisdiction. On the 17th of April, fendant then filed objections to the motion 1909, the county court overruled the objecon its merits, and the matter was heard by tions to its jurisdiction, and defendants the county court on the 29th day of April, thereupon filed a demurrer to the proceed1909. The county court made an order set-ing by motion, which was overruled by the ting aside and vacating the final decree en- court; exceptions being entered to both rultered on the 20th of November, 1908, and fixed a new date for hearing final report of the administrator. The plaintiff filed pumerous objections to the administrator's report, and the county court on the 3d day of September, 1909, made findings of fact and conclusions of law and a decree in which the court held that plaintiff, Sarah R. Cal-on the final report and petition for distribuhoun, the adopting mother of Arthur Max Moler, was his sole and only heir, and that the title to the land vested in her absolutely, cutting off the other two aunts from any interest in the estate.

"On the 11th of September, 1909, the defendants appealed to the circuit court of Beadle county. Upon a retrial of the action, the court overruled the findings requested by the defendants and entered findings and decree sustaining the decision of the county court. A bill of exceptions was settled and motion made for a new trial. The motion for a new trial was denied, and order denying same filed and entered September 12, 1910. On the same day an appeal was perfected to this court from the final decree and from the order denying the new trial."

Appellant presents three questions for consideration on this appeal: "First, had the county court of Beadle county any jurisdiction to set aside its final decree and enter a new decree as it did in this case? Sec

ings. Defendant thereupon filed objections to the motion on its merits, which were heard on the 29th of April, 1909, and on that date the court made an order setting aside and vacating the decree of final distribution entered on the 18th of November, 1908, and fixing a new date for a hearing

tion. To each of these rulings defendant excepted, but no appeal has ever been taken from the order vacating this decree. The precise questions presented to the county court upon the hearing of this motion were: First, whether the court had lost jurisdiction of the proceedings; and, second, whether, if the court was of opinion it had not lost jurisdiction, the facts disclosed on the merits of the motion were sufficient to warrant the setting aside of the decree; ог whether, upon any showing of facts whatever, the court might set aside the decree.

It may be conceded that no court can acquire jurisdiction either of person or property simply by holding that it has jurisdiction. But the motion itself was a proceeding pending before the probate court, which upon its face purported to affect the rights of persons then before the court as to property which may or may not have been within the jurisdiction of that court. It follows that, even if it be the law that the county court had lost jurisdiction or was

tribution, yet the court certainly had juris-, subsequently objecting to its decision and diction to pass upon and determine the ques- the proceedings taken thereon." If it be tions arising upon the motion, which were true that a party who makes no objection presented to the court for its ruling, by par- to the jurisdiction of the court may be held ties then present in court. We may assume, estopped from subsequently objecting to though we do not decide, that the law did its decision for lack of jurisdiction, may it not give the court authority to vacate the not with equal propriety be held that a pardecree, yet the court undoubtedly had au- ty who makes objections to the jurisdiction thority to decide the questions presented by and thereafter acquiesces in an erroneous the motion arising between parties then decision by his failure to appeal should be present urging their respective contentions held, likewise, to be estopped. In 2 Cyc. 644, before the court. In Herman on Estoppel it is said: "If a party to an action acquiesc& Res Judicata, vol. 1, par. 66, it is said: es in a judgment or order against him, he "Jurisdiction is the power to hear and de- thereby waives his right to have such judgtermine the subject-matter in controversy be- ment or order reviewed by an appellate tween parties to a suit, to adjudicate or ex- court." In the case of Prosser v. Chapman, ercise any judicial power over them; the 29 Conn. 515, it was held, in effect, that a question is whether on the case before the party might waive his right to object to an court their action is judicial or extrajudi- order by the trial court which concededly cial, with or without the authority of law the court had no power to make. The court to render a judgment or decree upon the says: "The right to appeal from the judgrights of the litigant parties. If the law ment on the plea of abatement was one which confers the power to render a judgment or the judge had no power to deny, and he decree, then the court has jurisdiction. could have been compelled to entertain the What shall be adjudged or decreed between defendant's motion and allow such appeal. the parties and with which is the right of the case, is judicial action by hearing and determining it."

[2] It is true that jurisdiction is said to depend upon various things-for instance, upon service of process, and that the subject-matter must be one upon which the court is given authority to exercise judicial authority. But these various things upon which jurisdiction may depend do not in themselves constitute "jurisdiction." When parties are before the court and present to it a controversy which the court has authority to decide, a decision not necessarily correct, but appropriate to that question, is a proper exercise of judicial power or jurisdiction. So far as the jurisdiction itself is concerned, it is wholly immaterial whether the decision upon the particular question be correct or incorrect. Were it held that a court had "jurisdiction" to render only correct decisions, then, each time it made an erroneous ruling or decision, the court would be without jurisdiction, and the ruling itself void. Such is not the law, and it matters not what may be the particular question presented for adjudication, whether it relate to the jurisdiction of the court itself, or affects substantive rights of the parties litigating; it cannot be held that the ruling or decision itself is without jurisdiction, or is beyond the jurisdiction of the court. The decision may be erroneous, but it cannot be held to be void for want of jurisdiction. In Herman on Estoppel, vol. 1, § 389, it is said: "Whenever a party seeks the aid of a court of justice to enforce his rights and submits his case and objections to the decision of a court and invites it to decide upon them and makes no objection to the jurisdiction until after the court has

It is no answer to say that the defendant pleaded to the action because the justice refused to entertain his motion to appeal and ordered him so to plead. The justice had no right to reject or defer such motion, and no power to enforce such order, and, as defendant was bound to know the law, he must be presumed to have known his rights and the remedies provided by law for their protection." It is thus held that acquiescence by complying with an order which the court had no power to make was a waiver which in effect estopped him on appeal from questioning the authority of the court to make the order. Suppose the court in this case had ruled upon the motion that the court had lost jurisdiction of the probate proceedings and the property affected by the decree, could it be contended that the court was without jurisdiction to make such ruling? In the case at bar, if it be conceded that the court was without legal power to vacate the decree, it cannot be deduced that the court was without jurisdiction or authority to decide the pending motion, nor that the court was without jurisdiction merely because the decision may have been erroneous.

[3] The ruling is one from which an appeal would lie. In re Olson, 10 S. D. 648, 75 N. W. 203; Weber v. Tschetter, 1 S. D. 205, 46 N. W. 201; Kirby v. Ramsey, 9 S. D. 197, 68 N. W. 328; Deering v. Quivey, 26 Or. 556, 38 Pac. 710. The decree became and was vacated, in effect, by the order made by the court upon a motion which the court had jurisdiction to decide, with all the parties before it, in which ruling appellant acquiesced. He cannot now be heard to allege that such decree was not vacated. this proceeding and conduct of appellant the

By

Chapter 2 of the Civil Code treats of adoption: "Sec. 128. A minor child may be adopted by any adult person, in the cases and subject to the rules prescribed in this chapter." Sections following relate to the procedure for adoption and are not material here. Section 136 provides: "A child when adopted may take the family name of the person adopting. After adoption, the two shall sustain toward each the relation of parent and child, and have all the rights and be subject to all the duties of that re

inated from further consideration, and the
case stood as though no such decree had
ever been entered. We hold that the court
had jurisdiction to decide the question pre-
sented upon the motion, and that the fail-
ure of the defendant to appeal from the rul-
ing constituted a complete waiver of any
objection to the jurisdiction of the court
interposed at the hearing of the motion or
elsewhere, and precludes this court from
a consideration or determination of the ques-
tion whether the probate court had or had
not authority to vacate the decree. Welation."
shall not therefore consider further the ef-
fect of that decree. We shall consider and
determine only the questions which arise
upon the final decree of distribution, and
the order overruling the motion for a new
trial so far as the same affects the final
decree before us.

The next question is whether the law of Illinois, where the adoption took place, or the laws of this state, govern the rights of adoptive parents and adopted children as to inheritance and descent of real property situated in this state. The statute of Illinois relating to adoption, so far as material to this appeal, is as follows:

"Sec. 5. A child so adopted shall be deemed, for the purposes of inheritance by such child, and his descendants and husband or wife and other legal consequences and incidents of the natural relation of parents and children, the child of the parents by adoption, the same as if he had been born to them in lawful wedlock, except that he shall not be capable of taking property expressly limited to the body or bodies of the parents by adoption, nor property from the lineal or collateral kindred of such parents by right of representation.

*

"Sec. 6. The parents by adoption and their heirs shall take by descent from any child adopted under this or any other law of this state for the adoption of children, but the parents by adoption and their heirs shall not inherit any property which such child may take or have taken by gift, bequest, devise or descent, from his kindred by blood." Hurd's Rev. St. 1909, c. 4.

It is conceded that respondent, Sarah R. Calhoun, could not inherit, as adoptive mother, the real property in controversy if it were situated in Illinois. It is contended by appellant that the "status" of the parties became fixed by the laws governing the rights of inheritance, of parties to adoption in Illinois, and that, as respondent could not inherit the property if situated in that state, her rights are not enlarged by the laws of this state, and she cannot inherit here.

The statutes of this state recognize the natural relationship of parent and child and define and establish the rights, duties, and obligations incident to that relationship. These statutes apply alike to children born

The statute defining rights of inheritance does not in express terms recognize the relation of parent and child created by adoption under the laws of this or any other state, but we see no reason why we should not hold that relationship by adoption is as fully recognized and covered as is the natural relationship with its legal rights of inheritance. The statutes of the various states differ in details of procedure required for adoption, but the result attained is substantially alike in all-the establishment of the relationship of parent and child.

In

[4] Counsel for appellant urge that adoption has its foundation in contract between the person adopting and the child adopted, and that the whole law of the state governing and defining the legal rights flowing from adoption enters into and becomes a part of the relationship created thereby. We cannot agree with this interpretation of these statutes. We believe it should be held that the statutes of each state authorize and permit the creation of the relationship of parent and child by adoption, with such incidental rights within the state as are conferred by the laws of that state, in the matter of custody, control, and the right of inheritance of property in that state. The relationship created no more has its foundation in contract than has the relationship created by birth. The decisions of this court recognize the general doctrine of the law that adoption is a creature of statute. the case of Henry v. Taylor, 16 S. D. 424, 93 N. W. 641, this court said: "Adoption was unknown to the common law, and, independently of the statute, there was no such thing as the adoption of an heir." Quinn v. Quinn, 5 S. D. 328, 58 N. W. 808, 49 Am. St. Rep. 875. And this is equally true of the right of inheritance. Logically the law of any state might provide the right itself being a creation of the statute that no child, either by birth or adoption, should possess the right to inherit property. It would follow that the status or relationship of parent and child, whether by birth or adoption, may be created under the statutes of any state, for certain purposes, such as support, custody, and control, while the right of inheritance of property as to either parent or child may be granted, denied, or limited by the same statute. It is clear that the laws of any state may recognize the differ