{dissenting). With due if difficult deference, I dissent.
*540My Brethren in majority, carrying themselves back like the Connecticut Yankee to the darker ages of English law and customs, make to the personal prejudice of an innocent youngster an infamous idol of the discredited rule that parental “rights”' reign over the best interests of the child.1 Doing so, and deigning no explanation, such Brethren turn their backs upon 1 of the most exalted and best settled doctrines of American law. Then, not fully sated, such majority — supposedly members of a constitutionally commissioned court of errors — sits as a court of final trial and peremptory sentence of this guiltless and now 10-year-old child; a sentence' that she leave now what the record shows is a good life for another life she does not know. And this-last the Brethren do contrary to the factual findings- and judgment of a manifestly careful probate judge, supported fully by confirmatory factual findings of' a circuit court jury on appeal and the concurring-opinion of 1 of Michigan’s ablest and most experienced circuit judges. They do not even consult the-wishes and attachments of the child, and seem not to realize that children too have rights; rights that are — or at least should be — paramount when there-is a conflict thereof with parental rights. Yes, deference is difficult.
The doctrine to which I refer was announced first, in the peninsular State, when Justices Cooley, Campbell, Marston, and G-raves signed and released Corrie v. Corrie, 42 Mich 509. Their discussion, of' what has remained some four-score years as dependable Michigan law, opened with these words (p 510):
*541“In contests of this kind the opinion is now nearly universal that neither of the parties has any rights that can he allowed to seriously militate against the welfare of the child. The paramount consideration is what is really demanded by its best interests.”
Accompanied by an extended and thoughtful discussion, such doctrine was followed in our leading ■case of In re Gould, supra.2 On the occasion of Gould this Court, proceeding toward adoption of ■Justice Brewer’s 3 application to like facts of an old proverb (“Let well enough alone”), redeclared the Michigan version (p 670):
“The power of parental control, though recognized as a natural right-and protected when properly exercised, is by no means an inalienable one. When the ■‘right of custody’ is involved between respective ■claimants for a child, the courts, though in the first instance recognizing prima facie rights of relationship, in the final test are not strictly bound by demands founded upon purely technical claims or naked' legal rights, but may and should, in making the .award, be governed by the paramount consideration of what is really demanded by the best interests of the child. Corrie v. Corrie, supra; Matter of the Heather Children, 50 Mich 261; Chapsky v. Wood, 26 Kan 650 (40 Am Rep 321); Richards v. Collins, 45 NJ Eq 283 (17 A 831, 14 Am Dec 726).”4
As today’s majority has noted, this case is divisive properly into 2 parts. The first presents an appeal to this appellate court for adjudication of reversible error, said to have occurred in the course of a jury tried circuit court case; a case which was brought *542to circuit on appeal from an order of the Washtenaw county probate court entered under section 18 of chapter 12A of the probate code (CL 1948 and CL1956, § 712A.1 et seq., as amended [Stat Ann 1962 Rev § 27.3178 (598.1) et seg.]). The second presents for disposition the vexing results of another misfortunate order directing ascertainment, by the circuit judge, (a) whether the appellant mother’s then brief and appendix conformed with our appellatrules and, if not, (b) whether a punitive assessment should be levied against her or her counsel undeformer Court Rule No 70, § 5 (1945),5 now GCR 1963, 816.5. These I discuss in order.
First: I deny that this Court, distinguished from the probate and circuit courts below, has either1 ‘the power or duty to find, exclusively from a lifeless ■ record of events to which witnesses testified more than 5 years ago, that the appellant mother is or is not fit — in this year 1963 — for an award of custody !of Susan Furlong6. I deny too that Susan was not shown, before either of the courts below, to be an ■ abandoned or neglected child within meaning and purpose of said chapter 12A. Just to suggest the-‘former is pure fatuity, and the latter is a pure question of fact which, judged by this long and bitterly ■contested record of testimony, no amount of wordplay can transform into a question of law justifying today’s toplofty sentence of the child.
I do agree that this Court has the power and the •duty, specific questions of law having been duly raised and saved, to ascertain whether the reviewed proceedings are tainted with reversible error. On *543that agreed premise I say that, if as the Brethren-aver (and the writer denies) this jury’s verdict is. contrary to the overwhelming weight of the adduced. proof,7 then by all that is elemental the case should be reversed for a new trial upon 1963 distinguished' from 1958 proof. But I cannot agree that such question is before us, appellant having failed to raise <and save it by motion for new trial. Have we not said, many times in specific paraphrase, what appears below? Let quotation speak (Boran v. New York Life Ins. Co., 274 Mich 638, 643):
“No motion for new trial was made. Therefore, on appeal, the weight of the testimony was not before us for consideration, and we may not consider it. Olshove v. Pere Marquette R. Co., 263 Mich 579; Olmstead v. Sober, 251 Mich 688; In re McCord, 243 Mich 309; Bacon v. Snashall, 238 Mich 457; Bishop v. Shurly, 237 Mich 76; Butler v. Neumann, 232 Mich 25; Kaufman v. Kaufman’s Estate, 230 Mich 388; Taylor v. Goldsmith, 228 Mich 259; Truesdell v. Michigan R. Co., 225 Mich 374; Dunton v. Sweet, 210 Mich 525; Clarke v. Case, 144 Mich 148. See, also, Roger Angstman Co. v. Liggett Spring & Axle Co., 267 Mich 620, and Delta Asbestos Co., Inc., v. Sanders, 259 Mich 317.”
And see, more recently, Davis v. Jermstad, 350 Mich 439, 444, 445 (per Carr, J.), quoting with approval the following from Clarke v. Case, 144 Mich 148, 150 (cited above in Boran):
“Error is also assigned on the ground that the verdict is not supported by the evidence. The proper practice is to give the trial court an opportunity on a motion for a new trial to pass upon the question raised. As the record does not show that this was done, we cannot consider it.”
*544Finally, I am unable to support the gratuitous dixit that either of these orders (referring to the-probate court order and the affirming circuit court, order) will, if left alone, operate to “permanently sever parental rights.” That simply cannot be so, considering sections 19, 20, and 21 of said chapter 12A. The concluding sentences of said sections 20; and 21 read, respectively:
“If the child is placed in the permanent custody ■ of the court, all parental rights are terminated,, though such rights may be reinstated by a supplemental order of disposition.”
“At any time the court may enter an order for ■ supplemental disposition as long as the child remains ■under the jurisdiction of the court.”
Three of the 7 then seated Brother? made due note-of this, back in 1958 when Fritts v. Krugh, 354 Mich 97, 140, 141 was decided, and they did so without .traverse by any 1 of the majority foursome.9 Looking particularly at the above sections, the 3 observed that the legislature had granted to our probate courts-“continuing jurisdiction to issue supplemental orders ‘at any time while said child is under the jurisdiction of said court,’ ” and then concluded:
“Perforce, there is no finality of any order when-the order itself, by command of a self-incorporating ■statute, is made subject to the retained and continuing power of the court to ‘affirm, modify, or set aside’’ ■any and all such orders.”
What does this power to enter—at any time—a supplemental order mean, as applied to the case before us? Well, to affirm the present orders of *545the probate and circuit courts would impair in no way the right of this mother to seek, on up-to-date ■showing under said sections 20 and 21, an order for supplemental disposition. The parental rights of Mrs. Hatmaker are not permanently severed, and will not be — legally—no matter what we decide in this case. The continuing jurisdiction — under chapter 12A — of the Washtenaw county probate court will remain intact until Susan attains the age of 17 years, or unless and until it is terminated before that by judicial action under separate statute. Will someone please gainsay this, with stated reasons?
From the foregoing let us turn to Judge Breakey’s order, from which this appeal was taken. As previously noted, that order affirmed what the probate court had ordered. The probate order was entered August 15, 1957. It reads:
“That the said minor child, Paula Marie Mathers, comes within the provisions of chapter 12A of the probate code of 1939, as amended, being PA 1944 (1st ex sess), No 54, as amended.
“That it is for the best interests of the minor child, Paula Marie Mathers, to make said child a permanent ward of the court, and pursuant to the provisions of section 20 of said chapter, the said child is placed in the permanent custody of the court, and all parental rights of Pearl Jean Mathers Hat-maker are hereby terminated.”10
It is pure anathema to say that all factual findings below, consistently arrived at as they were in both courts on abundant supporting proofs, are contrary *546to the overwhelming weight of the proof. Accordingly, and finding no reversible error in snch or other regard, I would affirm what the circuit court has affirmed, subject to 1 possibly unnecessary modification dictated of abundant caution. The affirmed order should expressly declare no prejudice to the mother’s statutory right to petition at any time for an order of supplemental disposition. In sum, and surely by the specific guidance of the jurisdictional provisions of chapter 12A, what happens to Susan — custodially—now and from these autumn months of 1963, should be determined on up-to-date proof submitted before the appointed court of primary as well as original jurisdiction. That court is the juvenile division below; not the detached, distant and personally uninformed Supreme Court of Michigan.
Before passing to the second division of this case some comment, concerning majority reliance upon In re Snyder, 328 Mich 277, should lie made.
First I would point to Snyder’s devotion to the previously mentioned principle (that the welfare of the child is paramount), and to Snyder’s pronouncement of that broad rule of evidentiary inquiry which has pertinently guided juvenile divisions as well as chancellors during the past 13 years. The Court said, in Snyder (pp 282, 283) :
“The best interests of the child have been the paramount consideration in habeas corpus proceedings (In re Goldinger, 207 Mich 99; In re Leu, 240 Mich 240; Liebert v. Derse, 309 Mich 495), and in chancery cases (Smith v. Ritter, 292 Mich 26; Foxall v. Foxall, 319 Mich 459) involving the custody of minors. The jurisdiction and powers of the juvenile division of the probate court are governed by chapter 12A of the probate code (People v. Tillard, 318 Mich 619), which provides that it shall be liberally construed to the end that the child will receive the *547care, guidance and control that will he conducive to its welfare and the best interests of the State. CL 1948, § 712A.1 (Stat Ann 1949 Cum Supp §27.3178 [598.1]). In this proceeding which was brought under section 2, subsection (a)(6) of this statute, we apply similar considerations to those which govern other custody cases. The inquiry is not limited merely to whether the child is fed and clothed, hut also extends to whether it is being provided proper support, education, medical and surgical care and other care necessary for its health, morals and well-being. The wholesomeness of the surroundings is a material element in determining whether the child is receiving proper care, guidance and control.”
I am unable to find, Snyder considered, that any of the proof received before this jury operated other than to shed light on what was “conducive to its [Susan’s] welfare and best interests of the State.” But this is not all Snyder sheds for present light.
In Snyder the probate court determined that a little child not yet 2 years of age should he placed in the care of the Muskegon Children’s Home. On appeal, when the child was a little over 4 years old, the Muskegon circuit court, sitting without a jury, ordered reversal of the order of the probate court. Then, on appeal to this Court, it was held that the circuit court’s order was “against the great weight of the evidence” and that the cause should be remanded to the circuit court “to enter a judgment affirming the order of the probate court.”
The appeal having been tried nonjury in circuit, former Court Rule No 64 (1945), (now, as modified, GrCR 1963, 810) became applicable; whereas in this jury-tried case it was not and cannot he made so. Rule No 64 expressly authorized our judgment in *548Snyder; whereas there is no rule authorizing, upon determination that a circuit court jury’s verdict is ■contrary to overwhelming weight, an order other than for new trial.
Not that I stand for a new circuit court trial of this dually sad case; sad for a pitiable mother and sad for a presently happy child. I stand instead for affirmance, and submit the foregoing solely as proof that no one may safely accept today’s majority opinion as procedural precedent. That opinion, as Josh Billings would say, ain’t likely to show; again anyway.
Second: Refer now to part 2 of the majority opinion. I agree fully with the background and discussion of our ill-starred order of remand (issued February 25, I960)12 and the inevitable counterpart thereof (issued July 1, 1960), which background and discussion Justice Smith has presented in the first 5 paragraphs of said part 2. I agree, too, with his conclusion that neither costs nor damages should be assessed. It seems to me, though, that if this Court is going to admonish “all sides” about the conduct •of this case, that its membership should descend from the supernal mount long enough to reálize, and then confess of record, the' causative sin of what is now ■deplored. We owe to the parties, and definitely to the circuit judge upon whom the onerous burden of our said orders was cast, an open acknowledgment that the so-called appendix system of bringing cases to review here, effective as that tried and found-wanting system has been since January 2, 1957 (347 Mich xiv-xxxii), is the poison root of what has ensued in this Mather Case; also that it has turned out, upon cumulative and steadily multiplying experience with a well-meant yet impossibly visionary theory (that a proper record for printing on appeal can *549and will be made up without immediate supervision of the trial judge), that appellant’s original brief and appendix were less at fault than the system itself.
In this type of case especially it is quite impossible to prepare an appellant’s appendix which cannot be the subject of honest controversy and resultant heat. The appellee invariably insists that what has been printed does not “include all parts of the record which should be considered by the Court in order to fairly judge the issues on appeal from the standpoint of both appellant and appellee.” The appellant just as vigorously insists that it does.14 Sooner or later, in the good name of better judicial administration, we shall return to the 100-year tried system of settlement, by the judge who knows best, of settled bills and records. To make the prickly sackcloth more comfortable, we might then call the judicially certified record the “settled appendix.”
Conclusion.
There is something inscrutably cruel about an appellate court order—signed by judges who know absolutely nothing about the involved humanities excepting as disclosed by inert print—which yanks an innocent youngster from the good home and care of good foster parents; foster parents who, for nearly 9 of the child’s 10 years, have provided for her the finest of environmental upbringing; and then forces that child into the strange home and care of an unfortunate natural mother and that mother’s latest mate; this time by marriage. Refraining pur*550iposely from any rehash of the mother’s dismal record of motherhood and personal trouble, it is enough to say, as certified to us by Judge Breakey, that Susan doesn’t even know her natural mother and that Susan came to the home of the Furlongs in January of 1955, at the age of 14 months. She remains there today. And now, since we should be interested even more in the child’s welfare than in the mother’s legal rights., let a witness-neighbor tell the child’s state as of that time (never forgetting that the jury had a right to believe the ensuing testimony and a like abundance thereof):
“I saw Sue [Paula’s nickname] the first night they had gotten her in the Furlong home. I knew the first night they heard from the Michigan Children’s Aid and we went right over. Mrs. Furlong called me. The first few times I saw Sue, she was so terribly shy. She acted — well more like a little frightened animal. She didn’t know which way to turn, and she didn’t know which one to go to. Mostly she turned to Mrs. Furlong at the first, and she would try to get behind her. We just couldn’t understand it. We hadn’t had that with our children. It was different than the way our children had acted. Noises had a terrible effect on her. I have never seen a child act like that either. She would start shaking and quivering and would put hands over her ears and just scream — and I’ve never seen that before. She is a different child now — so outgoing now and I haven’t seen noise affect her now in a good 2 years I know. At first, it was quite common for her to put her hands over her ears. Mrs. Furlong treats her very good. She is so patient with Sue, and Sue reacts in the same way. Mr. Furlong is very patient and very devoted in a different way from Mrs. Furlong, though.”
Looking at the “paramount” rule set forth in cases previously cited, and particularly at In re Brown, 343 Mich 69, one is led to wonder why our majority *551perceives no cruelty in its present order, whereas in¡ the Brown Case the Court found these facts, lead-' ing up to its holding that “It would be cruel to» Boland to remove him from his present happy, home.” (p 77):
“In the instant case it is our judgment that the evidence clearly sustains the trial court’s finding that Boland Brown would be happier and better satisfied to remain in the custody of the Cooks and thus his personal interests require that he be left in the custody of Mr. and Mrs. Cook. A careful examination of all the testimony in this case leads to the conclusion that plaintiff when he directed that Boland be placed in the hands of Mr. and Mrs. Cook for his custody, care and maintenance, did not expect to ask for the return of that custody to himself and by his words and actions at the time, and subsequent thereto, plainly gave his sister, Mrs. Cook, to understand that he was not going to demand the return to him of the custody of Boland.”
Turning now to majority reliance upon Fritts v. Krugh, 354 Mich 97 (provably as will presently appear “Michigan’s judicial wosbird of 1958”). Consider the ensuing record of what in the Supreme Buler’s good time ensued to protect the little Fritts children from the unbelievable error of a bare foursome, seated here 5 years ago. After release of our Fritts opinions, the probate court proceeded (despite majority affirmance of issuance of habeas corpus in favor of the petitioning natural parents) to hear and determine petitions for appointment of guardians of the 2 Fritts children. That part of the probate record,15 not barred from public gaze by the provisions of section 11 of the adoption statute-(CLS 1956, §710.11, Stat Ann 1962 Bev § 27.3178; [551]), discloses that the Berrien county probate *552court found (July'29, 1959), after due hearing and by separate orders entered as to each child, “that Doyle Almo Fritts, Sr., and Lileth Marie Fritts are unsuitable parents to have the custody, care and education of the said minor, Sally Ann Fritts [Doyle Almo Fritts, Jr., in the other order].” The 2 orders stand today. They portray another and subsequent reason for my refusal to recognize Fritts as worthy precedent.
Too, they prove that there is no way, no matter how much Pollyannish piety we may write into our opinions,16 to sentence a child into exile, from the good and only home and parents that child has ever known, without sickening punishment of the pure and the innocent. I regret indeed, cases such as Fritts, Herbstman (Herbstman v. Shiftan, 363 Mich 64) and now Mathers in mind, where imperious orders issued by this Court have terrorized or are due to terrorize and cast into hopeless grief some sinless youngster or youngsters, that the Constitution has not and does not now force us personally to carry out such orders. Perhaps some of my Brothers might then perceive that they have actually marched “to pitiless conclusions under the prod of a remorseless logic which is supposed to leave them no alternative,” and that even though they have deplored the sacrificial rite, they again are about to plunge the knife with averted gaze, errantly convinced that such is the inexorable bidding of their office. The phrasing is Cardozo’s, not mine. See The Growth of the Law at 66. Now will one — one at least — of the sentencing Brethren volunteer to assist personally Washtenaw’s hapless probate judge *553as that judge is forced to execute today’s sentence; the sentence my Brethren would have “carried out with care, sensitivity and reasonable promptness”?
Allowing no costs, I would affirm with the modification suggested above; also with instruction to the probate court that, (a) in event of filing of a statutory petition either for rehearing or for supplemental order, separate counsel be appointed—under section 17 of said chapter 12A —to represent the child, and (b) that the court consult, in open court or otherwise, the wishes of the child herself. As to such instruction see Bowler v. Bowler, 351 Mich 398, 406, and the address by J. Cameron Hall, General Counsel, State Bar of Michigan, delivered August, 1963, before the juvenile court judges assembled at Ann Arbor under auspices of the Institute of Continuing Legal Education. Further and pointedly: Now that the child has become 10 years old, she without doubt is an eligible witness. See the revised judicature act, PA 1961, No 236, § 2163 (CLS 1961, § 600.2163 [Stat Ann 1962 Rev § 27 A-.2163]), and comment in In re Gould, 174 Mich 663 at 670, 671.
Supplement (November 13,1963).
The foregoing opinion was submitted to other members of the Court September 7th last. Since then, under date of October 16th, Justice Souris has submitted his contribution in effort to solve rightfully this appeal of a gravely important chapter 12A case; a contribution which provides the first ray of hope for an innocent child the “law” threatens imminently. It deserves serious and respectful consideration.
Justice Souris, concluding as I do that ample evidence was received on strength of which the jury could find, as it did, that the child was parentally *554neglected within the statute, holds that the circuit court erred prejudicially in the admission of evidence. Upon such finding my Brother casts his vote to reverse and remand for new trial. Such is the crux of our sole disagreement.
Now if I could agree that the circuit court did err as alleged, then my vote for reversal and new trial would be cast unreservedly. But I perceive no error and move to additional comment, keeping in constant mind our traditional and self-imposed rule that judicial error, especially that of admission of allegedly inadmissible evidence, is not reversible unless “it shall affirmatively appear that the error complained of has resulted in a miscarriage of justice.”18 There is no such miscarriage here, for at least 2 separate reasons. One is that the claimed errQr was invited by the appellant mother. The other is that such claimed error, if error at all, was rendered harmless by express and proper jury instruction.
What, in the course of these statutory proceedings, has been the legal status of Mr. and Mrs. Furlong, the provenly faithful caretakers and actual custodians of Susan (now 10 years old) since she attained the age of 14 months? I reply that under sections 3a, 11, 12, 14, 15, 17, and 21 of said chapter 12A the Furlongs were and are legal parties in interest and that they, as well as Susan’s belatedly contrite mother, were entitled as they did to present proof of that which would enable each court below to determine, not alone whether Susan was “within the provisions” of chapter 12A (§18), but also what “will be conducive to the child’s welfare and the best interest of the State” (chapter 12A, § l).
*555In this case the 2 questions cannot be separated. Both became clear issues of fact for the appointed trier or triers of fact. And since chapter 12A provides for a jury trial in probate (section 17) as well as in circuit (section 22), I perceive no error, and certainly no reversible error, in receipt of the evidence which was offered — before the jury — by both sides of this bitterly contested case. Indeed, in my view anyway, both courts would have been sadly remiss had they denied either of the contending parties the right to present such proof. Both courts needed all available evidentiary light upon the stated issues. Such light both received in exhaustive detail. In sum, and since this Court by the Snyder Case (In re Snyder, 328 Mich 277, at 282) has expressly read into chapter 12A the general, latitudinous and overriding requirement of judicial care for the best interests of the involved child, it seems to me that the scope of the evidentiary inquiry is automatically broadened once there is proof of parental neglect or continued parental unconcern for the child and its welfare. And in this case there was such proof; proof which seems to have persuaded a probate judge, a circuit court jury, and a finally reviewing circuit judge.
Now if it is to be held that receipt of the Furlong proof was judicial error, I would point to the fact that the respective contenders — the Hatmakers and the Furlongs — visibly invited such error in standoff fashion. Each sought, by proof of events and occurrences subsequent to January 3, 1955 (the date on which the child came to Furlong custody), to establish environmental and personal developments favorable to their competitive contentions. And what was done in such regard was sanctioned below upon the integrity of the Snyder Case.20 I cannot *556in these circumstances join in pronouncing their evidentiary rulings as prejudicially reversible, especially in view of Judge Breakey’s carefully restrictive jury instructions. He told the jury:
“While the record shows that Mr. and Mrs. Edward Furlong will be good parents to provide a home for Paula, I charge you that that is not for your consideration in this suit. I charge you, members of the jury, that the question to be decided is whether Paula was a neglected child as alleged by the agency in its petition. * * *
“You are the sole triers of the fact on the 1 issue which I am presenting to you, and in that, you may take into consideration the entire testimony as it has to do with what the mother did for the child or what the mother did not do for the child in determining whether or not there was neglect, whether or not the child was a neglected child. * * *
“The verdicts in the case that may possibly be -given are two: (1) That Paula Marie Mathers was a neglected child. (2) That Paula Marie Mathers was not a neglected child. The period of the claimed neglect is from the time of her birth to the date of the filing of the petition, which was September 27, 1955, I think.”
But aside from all this I return to what was written initially and above for affirmance. This statutory appeal to circuit, unlike just about all cases that are tried before juries in circuit, ended legally with no prejudice to the mother’s right to re-enter the probate court with up-to-date proof disclosing, *557if it should so disclose, that she is entitled to a supplemental order of disposition. It is best for her, the child too as I conceive, that further litigation should proceed in the probate court, in the manner authorized by section 20 of said chapter 12A. The pending adoption proceedings will have to be remanded to that court anyway, and that court should be enabled — promptly—to go about all needful determinations on present day proofs.
To recapitulate: When this Court assumes to appraise an allegation of reversible error, said to have occurred during trial of a chapter 12A case involving the alleged neglect or abandonment of a child, our membership should bear in mind that the admissible inquiry is necessarily broad; simply because the statutory purpose is declared to be broad. The concluding paragraph of section 1 (CL 1948, § 712A.l [Stat Ann 1962 Eev § 27.3178 (598.1)]) reads:
“This chapter shall be liberally construed to the end that each child coming within the jurisdiction of the court shall receive such care, guidance and control, preferably in his own home, as will be conducive to the child’s welfare and the best interest of the State and that when such child is removed from the control of his parents the court shall secure for him care as nearly as possible equivalent to the care which should have been given to him by them.”
As for the statutory preference (“in her own home”), that extends no aid to the appellant mother.. This child never had or knew a home of her own, at least until she was brought to the household of the Furlongs. She has never known a “home” with her mother, and there is no such “home” available now excepting that of the "Hatmakers.21 Which is to say simply that the 2 judges below could not have performed their mandated duties under chapter 12A *558without full evidentiary inquiry. Bach saw to it that the issues were tried fairly, and that in my view dictates affirmance rather than reversal.
Finally, I would say this: If a majority of the Court is inclined to reverse and remand for new trial, rather than order precipitate transfer of the child from the Furlongs to the Hatmakers, I have no implacable objection to such a judgment and would join for the sake of comparably better disposition of an appeal, the ultimate result of which may stultify forever a trusting and innocent young life. After all, hundreds of similar chapter 12A cases come every year to the responsibility of our 83 probate and circuit jurisdictions, cases of which this Court knows naught and never will, and we might as well settle 1 thing at least for such jurisdictions, that is, when a like chapter 12A appeal is jury tried in circuit, a judicial holding that the jury’s verdict is contrary to overwhelming weight calls for a new trial; not a peremptory order of disposition.
For American repudiation of such rule, and the record of installation of our enlightened rule that the welfare of the child is always paramount, see In re Gould, 174 Mich 663, 669, 670, and the exhaustive discussion in 39 Am Jur, Parent and Child, §§ 18-20, pp 604-609. Parens patriae, not patria potestas, is the universal rule in this country.
Richards v. Collins actually is reported in 14 Am St Rep 726. Tim Court’s reference to American Decisions was error.
See 347 Midi xxx, or Honigman, Michigan Court Rules Annotated, 1959 Poeket Part, p 212.
This is the only name the little girl knows, or is known by, or answers to. At age 10, how is she to comprehend, and then explain to herself and others, that she is fatherless Paula Mathers? Susan she is in this record, and Susan she will remain throughout this opinion. The detent of our ruthless guillotine has not as yet been tripped above a trusting unsuspecter, Susan Furlong.
That is the test on review of a jury tried case when the question is duly raised. See Schneider v. Pomerville, 348 Mich 49, 53-55, citing earlier Michigan cases.
See discussion of Fritts, relating the fortuitously fortunate outcome thereof, later in this opinion.
The following advices are gratuitous. It is not out of the way, however, to suggest to probate judges that the wording of every order, entered under the final sentence of said section 20, should conclude in the language of the section, that is, by adding the words “though such rights may be reinstated by a supplemental order of disposition.” The chapter effects such an adjudicatory result anyway, and it is best to avoid legal as well as lay misunderstanding of such orders that they spell out, for all to read, the statutory qualification whenever the judge decides to place a child “in the permanent custody of the court.”
For quotation of such order, see part 2 of Justice Smith’s opinion.
Eor melancholy example, consider the case before us. Appellant’s original appendix, filed October 26, 1959, consisted of 447 pages. Now, after intervening months of wrangling on remand, the total pagination of all appendices numbers 18701
Upon request of the undersigned such part of the reeord has been, certified to our clerk, to become a part of the Fritts Case file here. ;
Say as in Fritts at 117, “with the purpose of occasioning as little damage as possible in the lives of these children”, and now in Mathers by directing every effort “to minimize the emotional impact of the child’s transfer.”
This stuff takes the fur-lined lawbook. A judge might with equal effect order that death be “minimized.”
CL 1948, § 650.28 (Stat Ann 1943 Rev § 27.2618). For the current rule, headed “Harmless Error,” see GCR 1963, 529.1.
The Snyder Case led the circuit judge to view the purpose of the statute as I do. After haying quoted from the Snyder Case he found:
*556“The court is impressed by the fact that in the only ease brought to the court’s attention, on which both x>arties roly in part, In re Snyder, 328 Mich 277, although the procedural faets were different, the adopting parents were permitted to intervene, which tends to ■support this court’s present ruling.
“The court further finds that in view of the latitude indicated in the various sections of the probate code and in the Snyder Case the jurisdictional power of the probate court should be liberally construed and this court considers it to be for the best interests and welfare of said ehild that the Furlongs be admitted as parties so all pertinent matters may be determined.”
“Now” means, of course, the situation as it was disclosed in 1958, •when the ease was tried in circuit.