dissenting. I do not controvert the general rules of law laid down in the opinion of the ■court, but I seriously doubt whether they have been correctly applied to the facts in this case.
Although the position has been assailed as an unreasonable distinction, still, the weight of authority is in favor of the rule announced by the court, that “when .a, court of general jurisdiction has special and statutory pow;ers conferred upon it which are wholly derived from ■statute, and not exercised according to the course of the ■common law, or are not part of its general jurisdiction, it is to be regarded to that extent as an. inferior court, .and its judgments treated accordingly.” In testing the validity of the order of the probate court in question, it must therefore be treated as the order of. an inferior court. While it is true, as a general rule, that the facts necessary to give jurisdiction to an inferior court must appear upon the record, and if they do not so appear, the judgment is void, still I think there is an exception when the statute under which the court proceeds expressly directs that certain facts shall be stated in the record. In that event all jurisdictional facts thus named must appear from the record, but other jurisdictional facts not thus named may, when the record is ■•silent, be shown by proof aliunde. Jolley v. Foltz, 34 Cal. 321; 2 Freeman on Judgments (4 ed.), sec. 518; 1 Black, Judg. sec. 282.
The statute of 1885, which regulates the adoption of children in this State, and under which the order of adoption in question in this case was made, after providing that any person desirous of adopting any child may file his petition therefor in the probate court in the county where such child resides, expressly sets out the jurisdictional facts which the petition must state. That section is as follows: “Such petition shall specify, first,, the name of such petitioner; second, the name of such child, its age, whether it has any property, and if so how much; third, whether such child has either father or mother living, and if so where they reside.” Those jurisdictional facts which the statute expressly requires-the petition to state must appear from the record, or the judgment is void ; but it does not expressly require the residence of the child to be named in the petition, or set out in the record.
A question identical with this came before the supreme court of Illinois. In that case the order of adoption was made by the county court under a statute very similar to our statute, except that the jurisdiction to> make the order of adoption was conferred on the circuit or county court of the county where the petitioner resided. There was nothing in the record to show that, the petitioner resided in the county where the order was made, but it was held that the failure of the record to recite that jurisdictional fact did not make the order void. The court held that, as the statute did not require that fact to be stated in the record, or otherwise affirmatively shown, it would, in that proceeding, be presumed that the court heard proof of the facts which required it to decree as it did. Barnard v. Barnard, 119 Ill. 99; Vanfleet, Coll. Att. sec. 408.
Mr. Black, speaking of inferior courts, in his work on Judgments (sec. 282), says: “While it is undoubtedly the rule that, the record of such a court being silent on the subject or defective in its showings, there is no presumption to aid it—while we may even concede that under such circumstances it would be presumptively invalid—there seems to be no good reason for refusing to-hear proper evidence tending to show actual jurisdiction. And in some of the States the decisions are positive to-the effect that jurisdictional requisites may be shown by outside evidence, except in the case of those facts which the law expressly directs the court to spread upon its. records.”
What good reason can there be for refusing to allow a judgment of such a court to be supported by evidencealiunde showing that the court had actual jurisdiction when the fact so shown is not expressly required to be-stated of record ? The opinion of the court, in this case,, says “that jurisdictional facts cannot rest in parol, to be proved in one case and, perhaps, disproved in another.”' But, notwithstanding this statement, the jurisdictional facts upon which the validity of the judgments of inferior courts depend do rest, to a large extent, in parol, for is it not the established law that want of jurisdiction in these courts may be shown by parol evidence, even though it contradict the record or minutes of the court ? 1 Black on Judgments, sec. 282, where a large number of cases to this effect are cited. So Mr. Freeman says i “Any return or statement in relation to jurisdiction, found among the papers, minutes, or other written matter kept by these courts, seems to be but prima facie evidence; in opposition to which it may be shown, by any satisfactory means of proof, that the authority of the court did not extend over the matter in controversy, or over the parties to the suit.” 2 Freeman, Judg. (4 ed.) sec. 517. If the jurisdiction of these courts can be disproved by parol evidence, even though such evidence ■contradict the minutes of the court, then, like Mr. Black, we see no good reason why their jurisdiction may not be ■supported to the extent of showing those facts- which the statute does not expressly require to be stated of record.
The case of Hindman v. O'Connor, 54 Ark. 643, does not, in my opinion, contravene this rule, for the statute in reference to the removal of disabilities of minors does not expressly name the jurisdictional facts which should appear of record, nor was the question as to whether the record could be supported by proof aliunde before the court in that case.
Mr. Freeman, an able and learned writer on this subject, after stating that the rule allowing such facts to be shown in support of the -judgment -was laid down by the supreme court of California, says : “And this position, while controverted in many of the States, and perhaps not yet sustained by the majority of the decisions upon this subject, is, in our judgment, supported by the better reasons and destined to gain adherents.” 2 Freem. Judg. sec. 518. Jolley v. Foltz, 34 Cal. 321; Van Deusen v. Sweet, 51 N. Y. 381.
These cases have been cited, and the doctrine they announce twice approved, by this court. Railway Co. v. Lindsay, 55 Ark. 284; Visart v. Bush, 46 Ark. 155.
In the last case it was expressly held that the record of an inferior court could be supported by proof aliunde, where it did not contradict the record. The only way to escape the force of these decisions is to say that the record of the probate court in this case is, for the purpose, of an assault upon it, to be regarded as the record of an inferior court, but that, unlike the records of such courts, it can in no event be supported by parol proof. In other words, that it has neither the presumptions in its favor which belong to the judgments of a superior court, nor the benefit of support by proof aliunde which, is allowed in favor of the judgments of inferior courts. Such a rule would overturn a majority of the judgments, rendered by such courts in cases of this kind, and, I think, needs no argument to show its unreasonableness. See, also, Liss v. Wilcoxen, 2 Col. 85; Williams v. Cammack, 61 Am. Dec. 508.
It has also been doubted whether the heirs of an adult who has procured an order adopting a child as his heir have any right, to object that the prescribed procedure in procuring the order was not strictly followed.. In re Johnson, 98 Cal. 543, per Beatty, C. J.
The controversy over the tract of land in question in this case, which was owned by Mark A. Dooley at time of his death, is in fact between Mary Ek Parsons, his adopted child, and Sarah Ann Morris, a distant collateral relative. Dooley, at the time the order of adoption in question was made, was childless and without a. near relative. Moved by tender compassion, or by that, parental yearning which, counsel for appellee says, is. “the gentler and better part of man,” he sought out and adopted this little girl, whose parents we,re dead, and who, like himself, had no near kindred. He took her to. his home, lived with her, and died believing, no doubt, that, under the order of adoption which he had procured, she would inherit his property.
The record of the probate court of Phillips county-concerning the adoption shows every jurisdictional fact, expressly required by the statute to appear of record, but it is silent as to whether or not Mary Ek Parsons, resided in that county at the time the order of adoption was made. The circuit court allowed the appellee to show that she did in fact reside in said county at that, time, thus showing' that the court had jurisdiction and. that its order was valid. The admission of this testimony to support the record and the judgment of the.circuit court in favor of appellee was, I believe, under the facts and circumstances of this case, supported by-reason, and in accordance with what was right and proper. I therefore dissent from the opinion of the court ■ordering the judgment of the circuit court reversed.
Bunn, C. J., concurred in the dissenting opinion.