Beckett v. The State ex rel. Rothert

• Decision Date: 03 April 1894
• Docket Number: 1,024
• Parties: BECKETT v. THE STATE, EX REL. ROTHERT
• Court: Indiana Appellate Court

37 N.E. 30

10 Ind.App. 408

BECKETT v. THE STATE, EX REL. ROTHERT

No. 1,024

Court of Appeals of Indiana

April 3, 1894

Petition for rehearing overruled September 26, 1894.

From the Ohio Circuit Court.

Judgment affirmed.

W. J Beckett and W. S. Doan, for appellant.

A. G Smith, Attorney-General, J. K. Thompson and W. C. D. Stevenson, for appellee.

OPINION

ROSS, J.

This was a prosecution for bastardy, and is now in this court for the second time. Beckett v. State, ex rel., 4 Ind.App. 136, 30 N.E. 536.

The action was originally commenced before a justice of the peace of Dearborn county, and the appellant not having been arrested, the trial proceeded in his absence, and the court having found and adjudged him to be the father of such bastard, the cause was duly certified to the Dearborn Circuit Court, as provided by section 998, R. S. 1894.

On the former appeal it was held that a personal judgment could not be rendered against the appellant when the only service of process upon him was by publication. It was not decided by the court that the justice did not have jurisdiction to try and determine the paternity of the bastard child, in the absence of and without process having been served on the appellant.

If the justice had jurisdiction to try and determine the question of the paternity of the child in the absence of and without process having been served on the appellant, the certification of the cause to the Dearbonn Circuit Court vested that court with jurisdiction over the subject-matter, although it did not thereby acquire jurisdiction over the person of the appellant. Section 998, supra, provides for a hearing of the cause in the absence, and without process having been served on the party charged with being the father of the bastard child, and, if upon such hearing the person so charged is adjudged to be the father of such child, the justice shall transmit the papers and a transcript of his judgment to the circuit court, where the cause shall be docketed for trial. In cases of this character, a justice's court is simply a court of inquiry, and its judgment is simply for the purpose of vesting the circuit court with jurisdiction of the subject-matter, and of the person of the defendant, if he has been arrested, and while it is also provided in said section, that the cause shall be heard and determined by the circuit court the same as if the defendant were present, that part of the section can not, and does not, confer upon the court the power to render a personal judgment against the defendant except he appears or has been served with process.

After the reversal of the cause by this court, the appellant appeared specially in the Dearborn Circuit Court, and moved to dismiss the cause for want of jurisdiction. This motion was overruled by the court, whereupon appellant filed a plea in abatement, setting up the same facts set forth in his motion to dismiss. A demurrer was filed and sustained to this plea, and to this ruling and the overruling of the motion to dismiss proper exceptions were saved. Subsequent to these rulings the venue of the cause was changed on the application of the appellant, to the Ohio Circuit Court.

The first three errors assigned in this court, namely, the overruling of the motion to dismiss the cause, the sustaining of the demurrer to the plea in abatement, and the overruling of the motion in arrest of judgment, present for our consideration the question of the court's jurisdiction over the person of the appellant. These three errors involving the consideration of the same questions, presented in different forms, will be considered together.

The record before us fails to show the service of any process whatever upon the appellant, unless it may be considered that the motion to dismiss, and the plea in abatement, show that process had been served on him. Both the motion to dismiss and the plea in abatement, show that the...