Bolich v. Robinson
| Decision Date | 07 July 1921 |
| Docket Number | 21700 |
| Citation | 184 N.W. 218,106 Neb. 449 |
| Parties | FERN BOLICH, APPELLEE, v. HARRY ROBINSON, APPELLANT |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Cuming county: WILLIAM V. ALLEN JUDGE. Reversed.
REVERSED.
F. D Hunker and George A. Eberly, for appellant.
A. R Oleson and J. C. Elliott, contra.
Heard before MORRISSEY, C. J., FLANSBURG and ROSE, JJ., DICKSON and TROUP, District Judges.
This is a bastardy proceeding commenced in the county court of Cuming county, Nebraska, by Fern Bolich, appellee, and against Harry Robinson, appellant; the parties being hereinafter designated as plaintiff and defendant.
The plaintiff charged in her complaint that she was pregnant with a bastard child and that the defendant was the father. A hearing in the county court resulted in the binding over of the defendant to the district court; there a trial was had and the defendant found guilty and was, by the court, adjudged to be the father of the plaintiff's child, and required to pay $ 1,800 for its maintenance. Defendant appeals from this judgment to this court, and assigns many reasons why the judgment of the district court should be reversed.
The plaintiff testified to two acts of sexual intercourse in Wisner, Nebraska, with the defendant January 11 and 18, 1919, and that pregnancy resulted therefrom. The defendant denied these alleged acts of intercourse, and offered evidence tending to prove that on those dates he was not in Wisner, but at a distant place.
From the evidence it appears that, on the 27th day of June following, the complainant entered the Fairmount Maternity Hospital of Kansas City, Missouri, where she gave birth to a child October 3 following. She testified that a few days after its birth she consented to its adoption, and has never seen it since. The defendant offered in evidence, and the trial court excluded, an authenticated copy of the judgment of adoption of the child as entered by the circuit court for Jackson county, Missouri, at Kansas City on the 7th day of November.
No useful purpose will be served by a discussion of the many errors assigned. But few merit consideration. We are presented at the outset with the question of the jurisdiction of the district court for Cuming county to try this case, the contention of the defendant being that the action abated because of the birth of the child and its adoption in Missouri, thereby relieving the mother and the county of all liability for its care and maintenance, and that neither the plaintiff nor the county could thereafter maintain an action for the maintenance of the child, neither being liable.
From the record in this case it appears without dispute that every jurisdictional fact necessary to give the county court jurisdiction existed, and jurisdiction was acquired, not only by the county court, but by the district court. The district court having rightfully obtained jurisdiction, did it lose it by the mother going outside of the jurisdiction of the court for the purpose of confinement and the subsequent adoption of the child? We think not. The district court, having once lawfully and properly acquired jurisdiction, retained it for the purpose of the entry of any judgment that might be proper under the pleadings and the evidence.
By the adoption of the child, the mother was relieved of its support and maintenance, and the liability of the father for the support and maintenance of the child to the mother ceased. The adopting parents being residents of Missouri, the child took the residence of the adopting parents and they became liable for its support and maintenance. The rule of law is "An adoptive parent is ordinarily liable for the support of an adopted minor child to the same extent as a natural parent would be liable, and the natural parent is relieved of responsibility." 1 C. J. 1396, sec. 121. The relinquishment by the mother of the child and the adoption thereof relieved the mother of the maintenance thereof and placed the burden upon the adopting parents, and that part of plaintiff's cause of action against the defendant was abated. The action would not abate without a complete termination. If there was anything left to determine, the undetermined matter was not abated. This court has held that the death of the child, also the mother, will not abate the proceedings. Hanisky v. Kennedy, 37 Neb. 618, 56 N.W. 208; Dodge County v. Kemnitz, 28 Neb. 224, 44 N.W. 184. In the Hanisky case, the child died during the pendency of the action, relieving the mother and possibly the county of its support; and this court held that complainant was entitled to recover the lying-in expense. The term "maintenance" used in section 6, ch. 37, Comp. St. 1889, was construed in that case to include the necessary expenses incident to the birth of the child, such as the employment of a nurse, midwife and physician, and a decent burial...
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