Allen v. Hunnicutt

• Decision Date: 02 March 1949
• Docket Number: No. 99.,99.
• Citation: 52 S.E.2d 18,230 N.C. 49
• Court: North Carolina Supreme Court
• Parties: ALLEN . v. HUNNICUTT.

52 S.E.2d 18

230 N.C. 49

ALLEN .

v.HUNNICUTT.

No. 99.

Supreme Court of North Carolina

March 2, 1949.

.

Appeal from Superior Court, Buncombe County; Zeb. V. Nettles, Judge.

Civil action by Judy Mae Allen, by her next friend, Agnes Allen, against Hilliard Hunnicutt, to establish paternity of plaintiff, who was an illegitimate child, and for support. From judgment for plaintiff, the defendant appeals.

Reversed.

Civil action to establish the paternity of an illegitimate child and for support.

Plaintiff is an illegitimate infant. She alleges that defendant is her putative father and prays an order (1) declaring that defendant is her father, and (2) requiring defendant to provide her with reasonable and adequate support.

Defendant denied that he is the father of plaintiff, pleaded a judgment of the domestic relations court of Buncombe County, and prayed that he go hence without day.

The cause came on to be heard before Clement, J., at the September Term, 1948, and issue of paternity was submitted to and answered by the jury in favor of plaintiff. Clement, J., departed the county without having signed judgment. Thereafter, at the December Term, 1948, Nettles, J., on motion of plaintiff, signed judgment on the verdict nunc pro tunc, decreeing that the defendant is the father of plaintiff and ordering and directing that he make certain monthly payments for her support and maintenance until she reaches the age of eighteen. Defendant excepted and appealed.

Don C. Young, of Asheville, for plaintiff-appellee.

George Pennell, of Asheville, for defendant-appellant.

BARNHILL, Justice.

The defendant's exception to the refusal of the court to dismiss the cause as in case of nonsuit presents for decision this question: May an illegitimate child maintain a civil action to establish its paternity and compel its putative father to furnish it support when the right of action is based solely upon the alleged relationship? The answer is no. [I] Under the common law an illegitimate child is nullius filius, and its putative father is under no obligation to support or contribute to its support. It has no father known to the law, no distinction being made between a reputed father and an admitted father. 7 A.J. 627. Accordingly, the courts in states which have adopted the common law have held in almost every case in which the question has been raised that without legislation the father of an illegitimate child cannot be required to provide for its support. Kimborough v. Davis, 16 N.C. 71; State v. Boston, 69 Okl. Cr. 307, 102 P.2d 889; Brown v. Brown, 183 Va. 353, 32 S.E.2d 79; Beebe v. Cowley, 116 Ohio St. 377, 156 N.E. 214; Hoffer v. White, 53 Ohio App. 187, 4 N.E.2d 595; State v. Lindskog, 175 Minn. 533, 221 N. W. 911; Law v. State, 238 Ala. 428, 191 So. 803; Carlson v. Bartels, 143 Neb. 680, 10 N.W.2d 671, 148 A.L.R. 658; Kordoski v. Belanger, 52 R.I. 268, 160 A. 205; Kessler v. Anonymous, Just. Ct., 18 N.Y.S. 2d 278; Anno, 30 A.L.R. 1069; 7 A.J. 673.

"It is universally held that a statute must be found imposing the obligation on the putative father before he can be charged with the child's support." Hurst v. Wagner, 181 Wash. 498, 43 P.2d 964, 965.

This does not mean that an action based on contract may not be maintained in the absence of a statute. In such case the right of action is bottomed on the obligation of the contract and not on the moral or natural obligation to support. Kimborough v. Davis, supra; Burton v. Belvin, 142 N.C. 151, 55 S.E. 71; Sanders v. Sanders, 167 N, C. 319, 83 S.E. 490; Thayer v. Thayer, 189 N.C. 502, 127 S.E. 553, 39 A.L.R. 428, Anno, page 434; Redmon v. Roberts, 198 N.C. 161, 150 S.E. 881; Conley v. Cabe, 198 N.C. 298, 151 S.E. 645; Hyatt v.. McCoy, 195 N.C. 762, 143 S.E. 518; Green v. Green, 210 N.C. 147, 185 S.E. 651.

But the plaintiff insists that we have said in at least two cases that "There is a natural obligation to support even illegitimate children which the law not only recognizes, but enforces." So we have. Sanders v. Sanders, supra ; Green v. Green, supra. But in each of those cases the action was being prosecuted by a legitimate child. Furthermore, we did not say and have not said the obligation may be enforced in an action instituted and maintained by an illegitimate child. As stated in Burton v. Belvin, supra, the natural obligation of the father to support will be enforced under the statute recognizing the obligation and imposing the duty. G.S. Chap. 49; G.S. § 7-103.

G.S. § 14-322 relates only to legitimate children. An illegitimate child is not protected thereby. State v. Gardner, 219 N.C. 331, 13 S.E.2d 529.

The remedy provided by statute for the enforcement of a right created by statute is exclusive. A party asserting such right must pursue the prescribed remedy. Seaboard Air Line R. Co. v. Brunswick County, 198 N.C. 549, 152 S.E. 627; Committee on Grievances of State Bar Ass'n v. Strickland, 200 N.C. 630, 158 S.E. 110; Maxwell, Com'r. v. Hinsdale, 207 N.C. 37, 175 S.E. 847; Rigsbee v. Brogden, 209 N.C. 510, 184 S.E. 24; Padgett v. Long, 225 N.C. 392, 35 S.E.2d 234; Moose v. Barrett, 223 N.C. 524, 27 S.E.2d 532; State v. Boston, supra; Kordoski v. Belanger, supra; Carlson v. Bartels, supra; Anno. 30 A.L.R. 1070.

...