For want of time, I have never been able to make such an examination of the voluminous record and printed arguments in this case as would warrant me in saying that the judgment of the superior court is free from error, but the denial of respondent's petition for a rehearing gives me occasion to say that, so far as the opinion of the court may seem to imply that the evidence does not sustain the findings of the trial judge to the effect that respondent's father did publicly acknowledge him as his own child, and treat him as if he were legitimate, it is not, in my opinion, sustained by the record. There is not only sufficient evidence, but, I think, strongly preponderating evidence, in support of these findings. The principal ground of the decision, however, as I understand the opinion of the court, is the failure of his father to receive the respondent into his family, and in connection with this point it is held that reception into the family of the father is an indispensable condition of legitimation under section 230 of the Civil Code, rendering it impossible for a father who is without a family and without a home to confer the status of legitimacy upon a child born out of wedlock.
The contrary was held in the Jessup case, and it was a pointdecided, and not, as stated in the opinion of the court, obiterdictum. The effect of the decision in that case was to remand the cause for a new trial, and it was the duty of the court to decide the questions which must necessarily arise upon the new trial, one of which was the proper construction of section 230 as to the possibility of legitimation in the case of a father without a family and without a home. Neither was the decision then made upon this point concurred in by a bare majority of the court. The four justices who signed Justice Fox's opinion awarding a new trial, necessarily concurred in what he said, and, a fortiori, the three justices who dissented from the judgment have concurred on this point, for it was absolutely essential to an affirmance of the judgment to hold that where the father has no family and no home he is not by that circumstance deprived of the power to confer the status of legitimacy upon his illegitimate offspring.
It is possible, notwithstanding the mature consideration *Page 173 given to the Jessup case, that the court may have been in error in applying the principle of liberal construction to the statute, instead of construing it strictly and literally, as it is construed here; but I cannot concur in a reversal of that case, which is put upon the untenable ground that the point was not decided, and that the so-called dictum of the court was concurred in by a bare majority of the justices.
Under the circumstances I think the case deserved further consideration.