The Act of April 4, 1925, P.L. 127, was passed with the purpose of transferring jurisdiction in adoption proceedings from the common pleas to the orphans' court. It repealed all prior acts prescribing or regulating the procedure in adoption cases. Unfortunately the draftsmen of the act overlooked the fact that in 1923 the municipal court of Philadelphia County was given concurrent jurisdiction with the common pleas court in adoption proceedings. The repealing sections of the Act of 1925 left the municipal court with jurisdiction but no procedure acts regulating the practice to be pursued. "Judicial legislation" had to be resorted to. Three courses were open: (1) To construe the Act of 1925 as repealing the jurisdiction conferred *Page 205 on the municipal court by the Act of 1923, as respects adoption proceedings; or (2) to extend the procedure prescribed in the Act of 1925 for proceedings in the orphans' court to the municipal court, although the latter was not mentioned therein and the evident purpose of the act was to give the orphans' court exclusive jurisdiction; or (3) to allow the municipal court to continue to use the same practice and procedure it had used before the Act of 1925 was passed. I thought, and still think, the first was nearest to what the legislature intended, but in McCann's Adoption, 104 Pa. Super. 196, this court decided that the jurisdiction of the municipal court was not affected. We have, then, a court having jurisdiction but no method of procedure except by implication. The municipal court evidently acted under the third course above stated and continued the practice and procedure legally used by it before the act giving jurisdiction to the orphans' court was passed.
This appeal seeks to set aside a decree of adoption entered by the municipal court because the procedure was not strictly in accordance with that prescribed for the orphans' court. Were it an appeal duly entered from a decree of adoption I would be inclined to reverse the decree, for I think the logical effect of the decision in McCann's Adoption is to extend the practice prescribed in the Act of 1925 to the municipal court; but this is an appeal by one whose actions entitle her to small consideration, from an order of the court below, after a full hearing and a detailed finding of facts, (Supplemental Record, pp. 1a-7a), refusing to set aside the decree made prior to the decision in McCann's Adoption, on the ground that the welfare of the child was best served by allowing the decree to stand, and that this appellant was not in a position to revoke the consent upon which the decree was founded. *Page 206
Under the practice in force before the Act of 1925 this decree of adoption was regular and valid. I think the record will sustain the inference that the petition was presented to the court some time — perhaps ten days — before it was formally marked "filed," during which time the investigator of the municipal court made his inquiries which satisfied the court of the character and responsibility of the petitioners. The child has been in the custody of her adopting parents almost since her birth. The mother — this appellant — an unmarried woman, was willing, if not anxious to have the child adopted into a good home. The reversal of this decree would not, of itself, entitle the mother to regain the custody of the child; for on habeas corpus proceedings the court could still award the custody of the child to the appellees, as being for her welfare and interests: Darlington's Adoption, 69 Pa. Super. 281. Whatever the irregularities of procedure, made at a time when the law on the subject was problematical, the lower court has, in the present proceedings, given the matter the fullest consideration and has refused to disturb the decree. This should cure the defects in procedure leading up to that decree. This appellant, at any rate, should not be permitted to attack it: Young's Adoption, 259 Pa. 573.
I would affirm the order of the court below.
Judge BALDRIGE concurs in this dissent.