PETITION FOR REHEARING.
[Filed March 12, 1889.]
Lord, J.In' this motion for rehearing the argument of counsel amounts to this: that the absence of consent of one of the parents, or to give the notice as prescribed by the statute if not found in the state, only renders the proceeding and decree of adoption Voidable, but not void, and unless corrected on appeal, such- -decree cannot be collaterally assailed. This contention is necessarily based on the idea that the consent of both parents, if living and not belonging to the excepted classes, or notice as pre-scribed and already adverted to, is-not a prerequisite to jurisdiction; that it is sufficient if the consent of one of the parents be obtained,- and that the other parties, viz., the child and petitioning parents, are present and consenting to- the proceeding for jurisdiction to attach, and thus to authorize the court to judicially act.
If this position be tenable, the decree of adoption is not Void, and cannot be collaterally attacked, for it is elemen-tary law that after jurisdiction has attached, although *217errors may occur in the exercise of such jurisdiction, the judgment rendered in such case is beyond the reach of collateral inquiry.
On the other hand, if the consent of both parents, or the consent of one and notice to the other as prescribed, whether in or out of the state, as the case may be, is necessary, and must precede the right or power of the court to act judicially, all other parties being present and consenting, such unity of consent, so to speak, is a prerequisite to jurisdiction, and a decree not founded upon it would be a mere nullity, binding no one, and subject to be so declared in a collateral action.
Our inquiry, then, is reduced to this: What are the requirements of our statute essential to eonfer jurisdiction upon the facts as presented in this record? It will assist us some in determining this question to ascertain the nature of the power conferred and the rule of construction in such case to be applied to the statute.
The permanent transfer of the natural rights of a parent was against the policy of the common law. The right of adoption, as conferred by this statute, was unknown to it, and repugnant to its principles. Such right was of civil-law origin, and derived its sanction from its code. The right of adoption, then, being in derogation of common law, is a special power conferred by statute, and the rule is, that such statutes must be strictly construed. (Brown v. Basey, 3 Dall. 365; Dwarris on Statutes, 257.) This being so, the statute must receive a strict interpretation, and every requirement essential to authorize the court to exercise the special power conferred must be strictly complied with.
The statute provides that the parents of the child, except as therein provided, shall consent in writing to such adoption, but further provides that if a parent does not consent to the adoption of his child, the court shall order a *218copy of the petition and order therein to be served on him personally if found in the state, and if not, by publication as therein provided.
As the facts do not involve the excepted classes, the provisions of the statute in that regard are omitted. The object of such service, whether actual or constructive, when it has reference to those cases which require the written consent, and such written consent is not given, is to notify the party of the hearing in order to ascertain whether his consent may be obtained or will be given, so that the court may have the requisite authority to make the decree of adoption. If he appears and refuses to give such consent, there is then wanting what the statute specially names as essential to authorize the court to make a decree, or judicially act in the premises. The reason is, that consent lies at the foundation of statutes of adoption, and when it is required to be given and submitted to the court, the court cannot take jurisdiction of the subject-matter without it.
“The consent of the natural parents,” says one writer, “and of the child if of sufficient understanding, are, except in cases where the parents have deserted their child, .or are confined in prison, as a rule indispensable.” (3 Cent. L. J. 398.)
Says another writer in annotating a case, the “adoption, except where it consists merely in declaring the person adopted an heir of the adopter, must be founded on consent. All the statutes require the written, and generally the recorded, consent of the adopting parent or parents, and of the parents, parent, guardian, next of kin, or next friend of the minor appointed by the court, in most states the consent of the minor, if over fourteen, and finally the consent of the court.” (14 L. L. R. 682.)
. And it is further remarked that the case annotated is .valuable as an illustration of the strict construction that *219ought to be applied in deciding questions arising under statutes of adoption.
In Luppie v. Winans, 37 N. J. Eq. 245, the court say: “A just, and it seems to me an obvious and necessary, construction of our statute of adoption is, that if the child be under fourteen there need be no eonsent on its part, but the consent of the parent or parents, if there be any living, provided they be known and not hopelessly intemperate or insane and have not abandoned the child, must be obtained.”
It is thus apparent that if the parents are living and do not belong to the excepted classes, that their consent must be obtained and is a prerequisite to jurisdiction; that without such consent jurisdiction does not attach, and the court is without authority to -act and make a decree of adoption, and if it undertakes to do so, its decree will be a nullity, not voidable but void, and may be collaterally assailed in any action.
Now, by this record the admitted facts are, that the father of the plaintiff did not belong to the excepted classes, that he did not give his written consent, and that no notice in any form was .given or attempted to be given him.
In such case the statute is explicit, and requires the consent of the parents in writing to sanction the authority of the court before it can make a decree of adoption; certainly, it could not proceed without notice at least, assuming that notice may be given in such cases, and a failure to appear would be equivalent to consent.
But in this case the contention is, that the court could exercise its jurisdiction without such consent, and that its decree would only be avoidable, and that those appearing, it not having been corrected upon appeal, would be estopped by it. The vice of this argument lies in assuming that jurisdiction attached, and the court was author*220ized to make a decree of adoption without the consent which the statute prescribes as essential upon the facts as presented by this record.
There is a marked distinction betweeu jurisdiction and the exercise of jurisdiction. When jurisdiction has attached, all that follows is but the exercise of jurisdiction, but jurisdiction does not attach until the conditions upon which it depends are fulfilled.
In this case, the jurisdictional facts are the consent of the parents, not one of them but both, as the statute requires, and the absence of it is fatal to the validity of the decree. Hence, such a decree cannot bind or estop any one, and may be collaterally assailed, whenever and wherever it may be interposed in any action.
The motion is overruled.