Vandermis v. Gilbert

Opinion by Bbeber, J.,

This is a proceeding for the adoption of a child under the Act of May 19,1887, P. L. 125. On the 5th day of December, 1898, the petition was presented to the court and the decree made. The father of the child had signified his consent to the adoption by signing the petition on the 2d day of December, but he died the day before the petition was presented and decree made. The mother of the child had died some years before. The question is whether the court has proceeded in accordance with the provisions of the act of assembly regulating the manner of procedure to be followed to secure a decree of adoption.

Where a proceeding in an inferior court is purely statutory and no provision is made for an appeal, the only writ by which a review can be had is a writ of certiorari. This writ is allowable except in cases where it is expressly forbidden by the statute ; but upon such a writ the appellate court can only review *575 the regularity of the proceeding under the statute. Its only duty is to see whether the procedure of the court below has been according to the act of assembly under which it acts. In the consideration of this question the appellate court is confined to the record: Kimber v. Schuylkill County, 20 Pa. 366 ; Chase v. Miller, 41 Pa. 403 . The fact that the proceeding is now before us by virtue of an appeal under the Act of May 9, 1889, P. L. 158, does not enlarge our power of review. Whilst this act has reduced all writs designed to have a case reviewed by an appellate court to one name, the distinguishing characteristics of the different writs that prevailed before the passage of that act still remain. If before the passage of that act the proper writ to secure a review by an appellate court was a certiorari, the court on an appeal is still compelled to consider the case as if it were before it upon such a writ, Rand v. King, 134 Pa. 641 , and therefore the only matter now before us is the regularity of the procedure of the court below. If the" record reveals that it has not been in compliance with the terms of the act, we must reverse, but in doing so we do not pass upon the merits of the case at all.

An examination of the act under which this proceeding was had satisfies us that the record in this case reveals a fatal defect. The act requires the consent of the parents or surviving parent of the child to be given. If there are no parents, then the next friend of the child, or the guardians or overseers of the poor, or such charitable institutions as shall have supported the child for at least a year, must consent. This child had neither parent living at the time the petition was presented and the decree made. The fact that its father, who was the surviving parent, had died only'one day prior to the presentation of the petition and the making of the decree leaves the child as much without parents as if he had died a year before. The act contemplates a proceeding in court between parties who are to satisfy the court “ that the welfare of such child will be promoted by such adoption.” Although the proceeding is by petition, the facts stated in it must be supposed to be made as of the date when the petition is presented. If, at that time, there is no living parent who can consent, then the next friend or the others mentioned in the act of assembly must be called to consent. In this case the father, by his death, lost his power to consent. We *576 cannot agree that his consent, given a few days before, conld be effectual beyond the moment of his death. If it could be effectual one day beyond we can see no reason why it should not be so one year beyond that event, even though the conditions may have changed materially in the mean time. As the act requires the consent of some one before the decree can be made, and as a dead person cannot legally consent, we think the father’s consent in this case must be held not to be a compliance with the terms of the act of assembly under which the court was acting.

Judgment reversed and proceedings quashed.