The law of this case was stated in the former appeal,116 Okla. 268, 244 P. 1109. Therein this court held (overruling three cases now cited in the majority opinion) that both the mother and the stepfather of the minor were entitled to personal service or actual notice, and, moreover, that posting notices, or such notice as the county judge deemed reasonable, did not authorize or justify the substitution of such constructive notice as exists in this case. We held that failure to give proper notice deprived the court of jurisdiction of the minor and his property. Therein we said, as to the urged discretionary power of the county judge as to constructive notice:
"We cannot agree with this contention. The statute quoted clearly contemplates that the relatives in the county and persons having the care and custody of the ward should have some kind of actual information of the hearing of the petition for the appointment of the guardian. To hold that the posting of notice in three public places in Muskogee county is sufficient, in view of the fact that the mother and stepfather of the minor residing in Muskogee county had the care and custody of the minor, would be to place a construction upon said section of the statute not within the intent of the Legislature.
"It is true the statute gives the county judge discretion to select such means as he deems reasonable in informing the relatives of the time and place of the hearing of the petition for appointment of a guardian, but it was never intended, we think, in so important a matter as appointing a guardian for a minor child living with its parents in the jurisdiction of the court, to give only constructive notice of such hearing.
"Actual notice is required to be given to *Page 154 the relatives of a minor residing in the county where guardianship is sought whenever actual notice of the time and place of hearing can be had on such relatives; the method or manner of giving such actual notice to be such as the county judge deems reasonable. In other words, the clear meaning of the statute, as we view it, is that constructive service is to be resorted to only in those cases where there can be no actual service made."
The court in the majority opinion states the issue now before us:
"The trial court found * * * that the mother of the minor had notice and had waived her right to appointment, but that the stepfather also was entitled to actual notice of the hearing on the petition for appointment of guardian and that the appointment was void because the stepfather was not served with such actual notice."
But this court fails to decide that issue as stated. I think, and, therefore, state, that we should decide that issue. However, this court, in my opinion, committed a more grievous error than failure to, decide an issue submitted. It violated for the first time, to my knowledge, the law of the case where no manifest or gross injustice had been done. In doing so it relied upon cases, theretofore in the case, between the same parties expressly overruled, as well as the doctrine therein which includes other cases. Johnson v. Furchtbar, 96 Okla. 114,220 P. 612; Ross v. Groom, 90 Okla. 270, 217 P. 480; Crabtree v. Bath, 102 Okla. 1, 225 P. 924. It by inference overruled other decisions, yet found that the minor "was in the care of its mother and stepfather"; that the mother had actual notice and that was sufficient without any notice to the stepfather other than constructive notice by posting as aforesaid. This court says that the former decision in this case is not binding. I cannot agree. Powell v. Milling Co.,107 Okla. 170, 231 P. 307; Wade v. Hope, 89. Okla. 64,213 P. 549; Henry v. A., T. S. F. (Kan.) 109 P. 1005, 8 A. L. R. 1033, and 1 A. L. R. 1262.
The rule of law of the case is well stated in 4 C. J. 1096:
"Again the rule has been said to be 'necessary to enable an appellate court to perform its duties satisfactorily and efficiently, which would be impossible if a question, once considered and decided by it, were to be litigated anew in the same case upon any and every subsequent appeal.' If a different rule were admitted, it is said, every change in the personnel of the bench would produce confusion."
In Metropolitan Ry. Co. v. Fonville, 36 Okla. 76,125 P. 1125, the rule of the law of the case was applied where the former appeal was in the territorial court:
"A decision of the Supreme Court of the territory of Oklahoma on a former appeal became the law of the case and governs this court, as well as the trial court, as to the questions decided on that appeal." See, also, Smith v. Kennedy, 85 Okla. 163,207 P. 729.
Mr. Justice Hefner stated the rule of law of the case in Doyle-Kidd D. G. Co. v. Ingram, 126 Okla. 161, 259, Pac. 211, and found foundation for such rule in the cases following:
"This court having held on a former appeal that the trial court should have directed a verdict for the defendant at the close of all the evidence, and inasmuch as there is no substantial difference in the facts presented in this case from those presented in the case when it was here before, the decision of the former appeal is controlling." Carroll v. Worley, 127 Okla. 173, 260 P. 3; Johnson v. Taylor,131 Okla. 113, 267 P. 1052; Bass Furn. Carpet Co. v. Finley,129 Okla. 40, 263 P. 130; Powell v. United Mining Milling Co.,107 Okla. 170, 231 P. 307; Kirby v. Hardin, 41 Okla. 609,134 P. 854; Sovereign Camp W. O. W. v. Bridges, 37 Okla. 430,132 P. 133; Reed v. Robinson, 92 Okla. 107, 219 P. 296; Mickelson v. Helm, 89 Okla. 90, 214 P. 117; Midland Sav. Loan Co. v. Sutton, 93 Okla. 230, 220 P. 663; Cleveland v. Mascho, 95 Okla. 22, 222 P. 1008; City of Yale v. Noble,113 Okla. 106, 239 P. 463; Kingfisher Imp. Co. v. Talley,51 Okla. 226, 151 P. 873; Corder v. Purcell, 50 Okla. 771,151 P. 482; City v. Colbert, 52 Okla. 235, 152 P. 603; Producers v. Maple Co., 133 Okla. 224; 52 Okla. 769;41 Okla. 122; 53 Okla. 379; 58 Okla. 22; 63 Okla. 169; 85 Okla. 163;62 Okla. 263; 73 Okla. 40; 62 Okla. 112; 68 Okla. 240;62 Okla. 109; 21 Okla. 503; 39 Okla. 565; 36 Okla. 76; 37 Okla. 48;25 Okla. 199; 90 Okla. 195; 98 Okla. 47; 4 C. J. 1093-1099-1213-1321; 5 Cyc. 49, 492.
This court justifies itself by stating that the law as determined at the time of the instant appointment of guardian and sale upheld constructive notice. I say not so. There is not a case cited that was decided as of the date of this sale — those cases we decided ten years later.
Lester v. Smith, 93 Okla. 143, 200 P. 780, decided June 28, 1921, is cited to show "The court held that the probate proceedings of Oklahoma came from California," which is error, for the law did not come from California, but from Dakota. Then Asner v. Yorba, 125 Cal. 513, 58 P. 137, *Page 155 is cited as supporting the issue before us. It does not support it, for there the parent, who had custody of the child, was appointed guardian — not a stranger, as herein. Again in the majority opinion it is said the statute, section 1431, C. O. S. 1921, was adopted from California, which is repetition of error. The statutes are not identical, but with an entirely different wording and meaning. A construction of the California courts is relied upon, which in no way is binding upon us, but even if persuasive, that influence ought to secure a result diametrically opposed to the majority decision, for it has always been the law in California that those in custody of the minor must have notice, and no California case, past or present, has held posting of notice was sufficient as notice to those in custody of the minor, but have uniformly held to the contrary.
The California case of In re Chin Mee Ho, 73 P. 1002 (1903) so holds, contrary to the majority opinion, and there is no departure in California from that rule. Therein in effect the custodians are declared to be entitled to actual notice, relatives are distinguished and are said to be governed by their discretionary statute. That is a habeas corpus case. Burroughs v. DeCouts (Cal.) 11 P. 739; In re Lundberg (Cal.)77 P. 156; In re Morhoff's Estate (Cal.) 178 P. 294.
Particularly I cite In re Eikernkotter's Estate, 126 Cal. 54,58 P. 370, where the Supreme Court of California in 1899, and subsequent to the decision in Asher v. Yorba, of the same year, construed section 1747 of their code, wherein a stranger, as herein, sought the appointment as guardian, and it was held:
"Code Civ. Proc. section 1747, declaring that, before a court shall appoint a guardian of an infant, it must cause such notice as it deems reasonable to be given to the person having the care and custody of the infant, is mandatory; and without such notice the court has no power to make an appointment."
In the body of the opinion it was held:
"Among other matters, sec. 1747, of the Code of Civil Procedure declares 'Before making such appointment the court must cause such notice as such court deems reasonable to be given to any person having the care of such minor.' By virtue of this provision of the statute, it is mandatory that the person having custody of the minor should have notice of the hearing. Such notice is absolutely necessary to give the court jurisdiction of the proceedings, and power to make the order of appointment." In re Dahnkes Estate (Cal.) 222 P. 381; In re Pryors Guard. (Cal.) 229 P. 60; In re Arkles Estate (Cal.)269 P. 689; In re Forrester (Cal.) 123 P. 283; In re Mathews (Cal.) 145 P. 503; In re Mores' Est. (Cal.)176 P. 461.
"Under Code Civ. Proc. sec. 1751, the father of a minor under 14 years is entitled, as a matter of right, to the guardianship of such minor, unless shown to be incompetent, and competency is presumed and should be so found by the court in the absence of evidence to the contrary." In re Tetsebumi Yano's Estate (Cal.) 206 P. 995; In re Salter (Cal.) 76 P. 51; In re Aker's Est. (Cal.) 194 P. 706; In re Taylor's Est., 131 Cal. 180,63 P. 345; In re Wise's Est. (Cal.) 177 P. 277; Mathews Est. (Cal.) 164 P. 8; Morhoff's Est. (Cal.)178 P. 294.
Herein the mother is said to have notice by filing a waiver of appointment. Granted. Query. Was the stepfather eligible to appointment as guardian? Did he waive his right? Ans. No. Did he have actual notice? Not by service. Did actual notice to the mother constitute actual notice to him? The trial court found on page 95 case-made as to the stepfather, Isaac Smith:
"And his testimony is uncontroverted that he had no notice of it. So, if he is entitled to notice, he has had none, and, following the expression of the Supreme Court in this case itself, then the appointment would be void because he didn't have any notice of it. * * * The whole record consisting of record testimony, except brief testimony of the stepfather on the stand wherein he says he didn't have any notice of the appointment of the guardian, and I will have to find, on a matter of fact, that Isaac Smith didn't have any notice of the appointment of the guardian. * * * I come to the irresistible conclusion that, after reading the opinion of the Supreme Court * * * that this stepfather was one of the parties having care and custody of this minor and a resident of the county at the time of the filing of the application for the appointment of guardian, was entitled to notice the same as Ellen Smith, the mother, and that without it jurisdiction of the county court of Muskogee county to appoint a guardian was never acquired, and, therefore, the appointment was void under the authority of this case as adjudicated in the Supreme Court."
B.F. Westlake, a stranger, filed the petition for appointment of the guardian. The California law and the law of this case is that posting of notices is not sufficient to give the county court jurisdiction to appoint a guardian, where the petition for appointment is filed by a stranger, and where no actual notice or service of notice *Page 156 is had upon the persons (plural) having the custody of the minor, but such appointment without such notice is without jurisdiction and void.
The majority opinion is in conflict with decisive cases rendered by this court, as follows, to wit:
"Under section 1431, C. O. S. 1921, and the allegations of the petition, it was essential that the father having the care of the minor child in the county should have had notice of the application of a stranger to be appointed guardian of suchminor before the court could acquire jurisdiction." Smith v. Page, 117 Okla. 223, 246 P. 217; Myers v. Harness,116 Okla. 268, 244 P. 1109; McIntosh v. Holtgrave, 79 Okla. 63,191 P. 739; Walton, Mayor, v. Donnelly, Com'r, 83 Okla. 233,201 P. 367; Carlile v. Natl. O. D. Co., 83 Okla. 217,201 P. 377; Harris v. Bell, 250 Fed. 209; DeHasque v. A., T. S. F. Ry. Co., 68 Okla. 183, 173 P. 73.
In the former opinion in this case we said, through Mr. Justice Phelps:
"The rule and doctrine laid down in Ross v. Groom,90 Okla. 270, 217 P. 480; Johnson v. Furchtbar, 96 Okla. 114,220 P. 612, and Crabtree v. Bath, 102 Okla. 1, 225 P. 924, in so far as they are in conflict with the views herein expressed, are expressly overruled."
Crosbie v. Brewer, 68 Okla. 16, 173 P. 441, cited in the majority opinion, shows by the text that:
"The father and mother also filed in writing a waiver of their right to be appointed guardian and requested the appointment of the said Brewer."
That was actual notice. Also that:
"On February 16, 1914, about 8:20 a. m., the petition of Norris Carney and wife was filed in the county court of Carter county."
That was actual notice.
So that now I say that case is not controlling or even persuasive as supporting the majority opinion. Moreover, the question there considered and decided does not touch hair nor hide of the question here. There the original guardian was discharged and a new one appointed, and there this court held that in the second appointment no notice is necessary.
"Where the guardian of the estate of a minor is properly appointed in the first place, the court acquires jurisdiction to administer its estate and may, upon the removal of said guardian, under section 6578, R. L. 1910, appoint a successor, without notice under said section."
That portion of the quotation from the Brewer Case omitted and shown by asterisks is:
"Such appointment may be made on the petition of a relative or other person in behalf of such minor."
That was the exact situation in that case — not so in the case at bar. (Section 6522, R. L. 1910, is the same as section 1431, C. O. S. 1921.) Again, the facts were vastly different, for therein it was said, "We have assumed that the taking up of his residence in Carter county by Norris Carney and wife with their child. Albert Carney, was bona fide. * * *" Whereas, the guardian, Brewer, was appointed in Pittsburg county, so that, since it was impossible to serve process or notice upon those in custody, due to their absence from the county, constructive notice by posting in that case was sufficient. Not so in the case at bar. Herein persons in custody lived in the county where the appointment was made.
As to Ross v. Groom, 90 Okla. 270, 217 P. 480, all we can now say is that the doctrine in that case was by this court adjudicated to be in error, as a part of the law of the case at bar. The conclusion therein reached may have been right, for we cannot tell where the guardianship case arose. The case on appeal came from Creek county. It appears that the petition for the appointment of the guardian, in whatever county it was, recited that "the persons having the care of Costella Lackey (minor) were Frank Lackey, father, and Jane Lackey, mother, whose postoffice address was Wagoner, Okla. Now we know judicially that Wagoner, Okla., is not in Creek county; further, that in the event the guardianship proceedings were not in Wagoner county, that it would be impossible to give service of notice, and perforce constructive service by posting would suffice."
Crabtree v. Bath, cited, simply follows Ross v. Groom, and falls into the same error as adjudicated by the law of this case.
Wortham v. John, 22 Okla. 562, 98 P. 347, is an early case (1906) not cited heretofore; it appeals to the writer as good law; under similar statutes and reasoning it was the law of the land then:
"The order appointing said Wortham, as such, in the first instance, is indefensible. * * * Said letters were issued to Wortham on his petition without notice to any of them. Assailing this order, it is contended that the jurisdiction of the court to make it depended on notice to the mother. With this contention we agree. The jurisdiction *Page 157 of the probate court is founded on statutes which should be strictly construed."
Shouler's Domestic Relations (4th Ed.) 499, 450, sec. 303, says:
"The court of chancery exercises a large discretion. Its authority over the persons and estates of infants, idiots, and lunatics cannot be questioned elsewhere. No tribunal short of the Legislature can interpose a check upon its powers. But it is different with probate courts. Their jurisdiction is founded upon local statutes, maintained in derogation of the common law, made subject to supervision of supreme tribunals, and confined to the exercise of special powers sparingly conferred. * * * With special strictness are the powers of probate tribunals scrutinized in matters which do not grow out of the settlement of estates of deceased persons."
Wortham v. John, supra:
"The notice thus required to be issued by the court was not merely directory, but a condition precedent to the vesting of jurisdiction in the court to make the appointment unless the parent appear voluntarily, and as no notice was given, and the mother did not voluntarily appear, the order appointing Wortham was void. Mr. Woerner, in his work (American Law of Guardianship), on p. 95, says:
" 'That no guardian can be appointed to the person of an infant having father or mother living, not declared unsuitable by a court of competent jurisdiction, nor a guardian or curator to an infant whose father or mother is entitled, under the law, to take charge of its estate as natural guardian, has already been pointed out as the law in most states. But parents may be adjudged incompetent or unfit to have the custody, care, and education of their children in proceedings for that purpose by a court having jurisdiction, in which proceeding the parents must be made parties, by notice to them enabling them to appear and be heard, unless they appear voluntarily. It is a fraud on the rights of a father to obtain guardianship of his child without his knowledge; and the appointment of a guardian to an illegitimate child, or to a legitimate child, after its father's death without notice to the mother is void' — Citing Sensemann's Appeal, 21 Pa. 331; Bowles v. Dixon, 32 Ark. 92; Bryan v. Lyon, 104 Ind. 227, 3 N.E. 880, 54 Am. Rep. 309. See, also, Spears and Wife v. Snell, 74 N.C. 210; In re Jacquet, 40 Misc Rep. 575, 82 N.Y. Supp. 986; Dalton v. State, 6 Blackf. (Ind.) 357."
And quoting from Redman Wife v. Chance, Guard., 32 Md. 42, it was said:
"The only power conferred on the orphans' court to appoint guardians for infants, if the father or mother was living, was derived from a section of the Code of that state as follows:
" 'The orphans' court shall have the right and power to appoint a guardian to any such infant as aforesaid, although such infant may have a father or mother living at the time of the appointment; provided, notice by the court be given by publication or otherwise, to such father, or mother (if there be no father living), to show cause why such an appointment should not be made.'
"The Supreme Court reversed the order of the lower court, and in passing, speaking of that provision of the Code, said:
" 'In thus recognizing the common-law right of the parent to the guardianship of the child, the Legislature was careful to guard against the appointment of any other person, except upon notice to the father or mother, if living, and a strict compliance with this provision of the statute was therefore made a condition precedent to the exercise of the power conferred."
"Speaking of the event of a failure to give notice, the court further said: 'We are clearly of opinion, therefore, that in such a case the father or mother, if living, may, by petition or other proceeding in the same court, attack the order itself. This general principle has been repeatedly recognized in courts of law and equity, where parties have been allowed, by an independent proceeding, to impeach judgments and decrees rendered without notice' — and sent the case back to the lower court to determine the fact whether the mother was not served with notice as alleged in the petition.
"The order being thus seen to be void, and not merely voidable, it is unnecessary to consider the further contention of plaintiff in error that, being voidable, it could not be set aside after the expiration of the term of court at which it was made. A void judgment or order may be set aside at any time. Nor can we review the action of the court refusing to cancel the lease complained of, for the reason that plaintiff in error did not appeal therefrom and no cross-appeal has been prosecuted from that part of the order by defendant in error. Neither is it necessary to discuss an alleged waiver of notice by the mother, in an alleged conversation with Wortham before his appointment, for the reason that the testimony not being preserved, and the master's report being silent on this point, we cannot consider it. Besides, as held by the court in the Redman Case, supra, the judgments of the probate court in this and other matters will not be permitted to rest in parol. The notice mentioned in section 3477 means legal notice issued by the court, and which seems to contemplate notice in the nature of a summons which cannot be *Page 158 dispensed with unless, as stated, by voluntary appearance in the person required to be notified."
The Lester-Smith Case, relied upon, 83 Okla. 143,200 P. 780, was adjudicated to be wrong by being specifically overruled in the law of this case. The writer is bound by that adjudication; however, he thinks and believes, and, therefore, states, that the case of Lester v. Smith may be correct. Therein no stranger was appointed guardian. Geo. M. Williams was "the father and stepfather of said minor." Wesley Lester was the minor. Ella Williams the mother. The marriage of Ella and George M. did not occur until "subsequent to the birth of the said Wesley Lester. Wesley Lester nominated his said father and stepfather guardian. So no issue is left undecided there. "Said minors reside with petitioner (Geo. M. Williams) hear Fox, Carter county, Okla." So no issue arose as to who had custody. Therein for the first time in Oklahoma, according to reported cases, Asher v. Yarba, supra, was even persuasive, and therein such law, in my judgment, was decisive. Therein, most sure, the person in custody had actual notice, for he was appointed guardian. Now it does not appear in the Lester-Smith Case that any attack was made because the mother did not have actual notice. We must presume she did have such notice, where the issue is not raised. County judge exercising discretion and ordering posting notice binds all except those in custody and residing within the county. Posting of notice, within the discretion of the county judge, under California, is good as against every relative in the world, within the county and without the county, except those having custody of the minor. And as in Asher v. Yorba, supra, and as in Lester v. Smith, supra, where the relative-custodian is appointed and not a stranger, it may be that posting of notice, or no notice, for that matter, where the county judge finds it is not necessary, would be sufficient under California Code. At least, it would be sufficient if those in custody had actual notice.
Where the majority opinion on p. 10 says: "in the Lester-Smith Case the application was made for and on behalf of the stepfather, without any application or waiver from the mother"
— it misstates the fact. It should say there is no showing of application or waiver from the mother, but that question was not in that case, and the showing therefore immaterial.
It is said in the majority opinion, p. 11:
"If the minor had a father and mother living and they had custody of the child, and a stranger was asking to be appointed as guardian, of course, a judge, who performs his official duty, would require some sort of actual notice on the parents."
With that statement of the law I heartily agree, and proclaim, moreover, that a stepfather is the same as a father in the eyes of the law in every adjudicated case, civil and criminal, that I have seen, as well as in the days of the old patriarchs, where the man was the head of the household, where society and government had its inception. Wells' Outline of History. And I now state a query to the majority of my distinguished associates: How in reason is the Supreme Court of this state to enforce the performance of official duty on the part of a county judge in relation to the appointment of a guardian, as stated, without the requiring of actual notice to parents, where a stranger seeks appointment as guardian, unless we say so in the proper case, such as this?
The statement that: "The proceedings, however, were in compliance with the law as it existed at the time this guardian was appointed * * * and that rights accruing to the purchaser at guardian's sale, and to subsequent purchases, cannot be disturbed by reason that at a later date the law was changed by judicial construction", is not the fact. No Oklahoma case has been cited that construed this law as is done in the majority opinion or in Ross v. Groom (July 24, 1923) 90 Okla. 270,217 P. 480; Crabtree v. Bath (April 22, 1924) 102 Okla. 1,225 P. 924; Crosley v. Brewer (Feb. 26, 1918, rehearing — not in issue here) 68 Okla. 16, 158 P. 388, 173 P. 441 — at a date closer than twelve years to the date of this appointment, which occurred February 20, 1911.
What constitutes notice?
"It is a well settled rule of law that where a statute requires notice to be given, actual personal notice is required and the notice must be personally served on the person to be notified." 20 R. C. L. 943.
"Notice — Generally notice, in its legal sense, may be defined as information concerning a fact actually communicated to a party by an authorized person, etc." 29 Cyc. 1113A.
"Notice is information of a condition affecting an existing right." Fed. Life Insurance Co. v. Whitehead, 73 Okla. 71,174 P. 784.
"Statutory notice" held to mean actual knowledge. Ky. Lbr. Co. v. Ky. Title Co., 184 Ky. 244; Ross v. Breene, 88 Okla. 37,211 P. 417. *Page 159
The jurisdiction and procedure in the probate courts are statutory, and the law requires a full compliance with the statute in the appointment of guardians.
Now the statutes in California and Oklahoma are similar as to provision for notice to persons having care of the minor, but essentially different in the provision for notice to the relatives of a minor.
The California statute, set out in Re Lundberg, 77 P. 156, reads:
"Before making such appointment, the court must cause such notice as the court deems reasonable to be given to any person having the care of such minor, and to such relatives of the minor residing in the county, as the court may deem proper.""
Our statute, section 1431, C. O. S. 1921, omits the qualifying words "as the court may deem proper." Consequently it may be said with great reason, and under the rule of strictissimi juris, the Oklahoma statute makes notice to all relatives of the minor residing in the county and to persons having the care of the minor mandatory and jurisdictional. I say emphatically that the custodians in the county must have actual notice.
Now, following the reasoning in Asher v. Yorba (Cal.) supra, under the phrase, "as the court may deem proper:"
"If the court has the power to say what particular relatives shall be given notice, it has power to say that notice by posting shall be given those relatives. It will be borne inmind that in this case the father had the Custody of the child,and asked to be appointed guardian of her estate. Necessarily anotice to him was not required."
In Re Lundberg (Cal.) 77 P. 156, it was said that in Asher v. Yorba, supra, that court held: "It is a matter of discretion upon the part of the court to give any notice whatever to therelatives residing in the county," and this based upon the phrase. "as the court may deem proper." Bat that court said, even in view of the discretionary clause, omitted in our Code:
"The statute does in terms require that notice shall be givento the person having the care of the minor, and such notice forsuch time as the court may determine to be reasonable, isnecessary to give the court jurisdiction to make theappointment." (Citing Eikerenkotter's Est., 126 Cal. 54,58 P. 370.)
In Re Morehouse, 176 Cal. 634, 160 P. 365, the California court held:
'The only jurisdictional notice required is one to be given to the person having custody of the minor." (Citing the Lundberg Case, and In re Eikerenkotter, supra.)
In the history under section 1431, C. O. S. 1921 (Rev. L. 1910, sec. 6522), it is shown that the statute was adopted in 1890. The majority opinion relies upon Asher v. Yorba, supra, which was decided by the Supreme Court of California in 1899, which was nine years after its adoption, therefore, we should conclude that the section was not adopted in view of the construction placed upon it, for the simple reason that no construction was placed upon it until nine years subsequent to adoption as aforesaid.
So now I say, even assuming that our statute came from California, which it did not, that when the language of the statute in the process of its adoption by Oklahoma was changed, its meaning was changed. The only reason to change the language was to change the meaning. And the discretionary phrase had been construed prior to our purported and adjudicated adoption. This court will presume that the legislative branch of government was cognizant of the construction placed upon the peculiar phrase they saw fit to reject. When notice is required by a statute, actual notice is contemplated.
The United States Supreme Court in Wuchter v. Pizzutti (Oct. 1927) 72 L.Ed. 446, held notice, to meet the requirements of due process of law, must be in a manner to make it probable that notice will actually reach the person to be notified.
I refuse, as did Mr. Justice Harrison, to concur in the establishment of a rule of law by this court to permit infants "like bleating lambs to be led to slaughter" and gutted of their property, with posting of notice directed to their parents, as not contemplated by statute, good sportsmanship, justice, and not read except by loafers about the courthouse. I would not concur even in the interest of making every scrap of paper in the hands of the corpulent a good title, for it is unconscionable.
Isaac Smith in this case occupied the position loco parentis to this minor, and he had the care and custody of this minor, as the trial court found. He had moral and legal obligations as to this minor. He may have been put in jail for failure to comply with the compulsory education law or to provide for necessities under the statute.
Likewise he had a reciprocal right the same as would have had the natural father had he lived. He had a right of notice at least where a stranger was appointed, as herein. For six years this child was his, and they occupied the relation of parent and child. *Page 160
The order appointing guardian recites a waiver by the mother, alone; it recites posting of notice. It is settled that a recited service eliminates a presumption of any other service or notice. Rock Island Imp. Co. v. Pearsey, 133 Okla. 1,270 P. 846.
The Supreme Court of Oklahoma in the case of Barker v. Barker, 25 Okla. 48, 105 P. 347, said:
"Merely by reason * * * of his marriage to the mother, the stepfather is not required to receive into his home her children by a former husband." If he does, "and assumes the relationship of parent, the reciprocal rights, obligations, and duties of parent and child attach."
As to a person standing in loco parentis, see: 29 Cyc. 1667-1672; section 4378, R. L. 1910; section 8036, C. O. S. 1921; Barker v. Barker, supra; Daniel v. Tolon, 53 Okla. 666,157 P. 756; Harris v. Lyons (Ariz.) 140 P. 825; Eickhoff v. Sedalia R. Co. (Mo.) 80 S.W. 966; Nelson v. Johansen (Neb.) 24 N.W. 730; Gorman v. State, 42 Tex. 221; Whitaker v. Warren, 60 N.H. 20; section 1441, C. O. S. 1921 (sec. 6530, R. L. 1910); Coates v. Benton, 80 Okla. 93, 194 P. 198.
Even under the rule in California one parent cannot obtain the appointment as guardian without notice to the other. In re Dahnke's Estate (Cal.) 222 P. 381; Thompson v. McGregor (Tex.) 285 S.W. 285.
For these reasons, I respectfully dissent.
Note. — See under (1) 25 R. C. L. p. 1069; 3 R. C. L. Supp. p. 1440; 4 R. C. L. Supp. p. 1619; 5 R. C. L. Supp. p. 1364; 6 R. C. L. Supp. p. 1503; 7 R. C. L. Supp. p. 863. (2) 25 R. C. L. p. 762. (3) 12 R. C. L. p. 1114; R. C. L. Perm. Supp. p. 3262. (4) 2 R. C. L. p. 224; R. C. L. Perm. Supp. p. 392. See "Appeal and Error," 4 C. J. § 3081, p. 1101, n. 21. "Guardian and Ward," 28 C. J. § 66, p. 1085, n. 41; § 302, p. 1177, n. 77. "Statutes," 36 Cyc. p. 1154, n. 81.