Knight v. Gallaway

Fullerton, J. — This is an appeal from an order of adoption. From the record it appears that Rettie Beatrice Walsh is an orphan female child, -of the age of seven years; her father having died in her infancy and her mother on February 18, 1905. Since her infancy, she has been in the custody of the respondents, although her mother while she lived kept-control over her and contributed to her support. In April folio-wing the death of the m-other the respondents filed a petition in the superior court of Spokane county, that being the county of their residence, praying for leave to adopt the minor as their own child. While this petition was pending, the appellants appeared and filed an- answer thereto, and a counter-petition, in which they controverted the allegations of the respondents’ petition, and asked that an order of adoption be made in their favor. It appeared from the appellants’ petition that they were residents of the state- o-f Montana, and [414] on the hearing the superior court held that it had no jurisdiction to entertain their petition because of 'their nonresidence. It then examined the evidence and held that the respondents were suitable and proper persons to have the care and custody of the child, and entered the order from which this appeal is taken. In deciding that the appellants were not entitled to petition in this state for tire adoption of the child we think the trial court ruled correctly. The statute on that subject reads in part as follows.: “Any inhabitant of this state not married, or any husband and wife jointly, may petition the superior court of their proper county for leave to adopt a child under the age of twenty-one years, not their’s by birth, and for a change of name of said child; . . . ” Bal. Code, § 6480. While this clause is somewhat awkward, both in expression and phraseology, we think its meaning plain. We think the legislature intended by it to limit the right toi petition the courts of this state for leave to adopt a child to inhabitants of the state, and to require married persons i» join in any petition presented on their behalf; and that it was an effort to express these different ideas by the use of too ferw words that gives rise to such uncertainty as appears in the language used. That this is the proper construction of the statute is borne out by the further clause requiring the petitioners to present their petition to the court of “their proper county.” The phrase “their proper county” must mean the county in which the petitioners reside, if it has any meaning at all, and to give it this meaning precludes the idea that a nonresident of the state has the right to petition. But while we are of the opinion that the court did not err in holding that it was without jurisdiction to grant the petition of the appellants, we are equally of the opinion that it erred in granting the petition of the respondents. In determining whether leave to adopt a child should be granted by the court the welfare of the child is the primary if not the [415] sole consideration, and we are convinced that it is not to the welfare of this child that the respondents be permitted to adopt her. Without quoting from the record the evidence that has driven us to the conclusion, we feel that so far from promoting her welfare it would be a positive wrong to her to permit the order to stand. The order appealed from will be reversed, and the cause remanded, with instructions to deny to each of the applicants the right of adoption. Mount, O. J., Hadley, Hoot, Crow, and Dunbar, JJ., concur.