Bielawski v. Burke, 34

• Decision Date: 06 January 1959
• Docket Number: No. 34,34
• Citation: 121 Vt. 62,147 A.2d 674,69 A.L.R.2d 1373
• Court: Vermont Supreme Court
• Parties: , 69 A.L.R.2d 1373 Annette BIELAWSKI v. William BURKE.

Page 674

147 A.2d 674

121 Vt. 62, 69 A.L.R.2d 1373

Annette BIELAWSKI v. William BURKE.

No. 34.

Supreme Court of Vermont.

Jan. 6, 1959.

Conley, Foote & Underwood, Middlebury, for plaintiff.

Bloomer & Bloomer, Rutland, for defendant.

Before CLEARY, C. J., and ADAMS, HULBURD, HOLDEN and SHANGRAW, JJ.

ADAMS, Justice.

This is a bastardy proceeding. From the files, record and findings made by the court on certain motions, the following facts appear;--The plaintiff made her complaint before a Justice of the Peace. The defendant, who was, at all times here material, a minor, was brought before the justice and his father, John W. Burke, became bail for him in accordance with V.S. 47, § 3267. The father and mother went to Rutland and employed the law firm of Bloomer & Bloomer to represent their son.

The case was entered in the Addison County Court and this firm entered its general appearance for the defendant. Trial was by jury on July 27, 1957, and resulted in a directed verdict of guilty. After a hearing before the court on September 6, the defendant was adjudged to be the father of the plaintiff's child and ordered to pay a certain sum to the plaintiff for the expense already incurred by her for the support, care and maintenance of the child. He was also ordered to pay a certain sum each week to the plaintiff and ordered to enter into a recognizance before the court conditioned that he would abide by and conform to the order. This order was served on the defendant on October 2, 1957. He did not enter into the recognizance or comply with the order.

No guardian ad litem was appointed for the defendant at any time during the course of any of the proceedings in the case. At the time of the trial before the jury, he was attending National Guard maneuvers in New York State in connection with his National Guard duties.

On October 5, 1957, Lois G. Burke, the mother of the defendant, was appointed by the Probate Court for the District of Addison legal guardian of the defendant. She filed on that date in the trial court a motion on behalf of her ward. This motion set up the failure to appoint a guardian ad litem and that at the time of the trial the defendant was in the military service and moved 'that said verdict and judgment order be stricken and that a new trial be granted said William Burke in accordance with the law and rule in such case made and that all proceedings terminating in the alleged verdict and judgment order be voided and held for naught and that he be given his day in court, and said judgment and order be vacated.' Subsequent to the filing of this motion, the plaintiff filed a motion for judgment and execution against the bail, John W. Burke.

Both of these motions were heard by the court on February 10, 1958. At that hearing, the plaintiff was present and testified and Lois G. Burke and John W. Burke were present and testified. Counsel who had been present at all stages of the proceedings since the entry of the appearance of counsel for the defendant in county court were also present. The court made findings of fact from which the following additional facts appear;--A member of the firm of Bloomer & Bloomer represented the defendant throughout all stages of the litigation and conducted or participated in all stages of negotiations in connection with a possible settlement. John W. Burke, father of the defendant, was present with this same counsel in all stages of negotiations between counsel and was in court during the preliminary proceedings and negotiations prior to the commencement of the jury trial. At some time, either just prior or subsequent to the empaneling of the jury and prior to the presentation of any evidence, the said John W. Burke, at the suggestion of counsel for the defendant, absented himself from the court room for the purpose of not being present during the actual trial of the factual issues.

The attorney for the defendant filed no plea of infancy or preliminary motion of that fact and never informed the court that the defendant was a minor. No motion was filed to set aside the verdict or to arrest the judgment and no appeal was taken within the time prescribed by the rules of court or by the law. The guardian excepted to some of these findings within fifteen days from the time they were filed but because of our disposition of the case it becomes unnecessary to consider these exceptions.

The court denied the motion of the guardian to set aside and vacate the judgment and grant a new trial and granted the motion of the plaintiff for judgment and execution against the bail. The case is here on the separate bills of exceptions of Lois D. Burke, as guardian of William D. Burke, and of John W. Burke to the action of the trial court.

The first and main question with which we are confronted pertains to the rights of a minor in proceedings of this nature and the procedure to be followed in that connection. No question is made as to the manner in which the questions here presented are attempted to be raised and we give no attention to that subject. Adams v. Cook, 91 Vt. 281, 284, 100 A. 42. The plaintiff seems to claim in her brief that the motion of the guardian on behalf of the defendant was filed too late. She does not state any reason for such claim or support it by the citation of any authorities. This is improper briefing and merits no attention. Knight v. Willey, 120 Vt. 256, 258-259, 138 A.2d 596.

However, is appears that the judgment order is dated September 6, and the motion was filed on October 5, which is within thirty days.

It is important to first determine the nature of the proceedings in a case of this type. The proceeding or prosecution in a bastardy action is statutory. Although in form criminal, it is in fact a civil remedy. Beattie v. Traynor, 114 Vt. 238, 241, 42 A.2d 435, 159 A.L.R. 1399. The object of the proceeding is not for punishment. It is to ascertain the father and compel him to contribute to the support of the child, if he is adjudged to be the father. The whole proceedings cease if the woman dies or is married before the child is born or should miscarry. All this shows that it is a civil suit and subject to amendment like other civil suits. Robie v. McNiece, 7 Vt. 419, 423-424. To the same effect are Allen v. Ford, 11 Vt. 367; Gaffery v. Austin, 8 Vt. 70, 72; Sisco v. Harmon, 9 Vt. 129, 135; Spears v. Forrest, 15 Vt. 435, 437. See also 7 Am.Jur., Bastards, § 81, p. 680, note 15; 10 C.J.S. Bastards § 32, p. 143, note 80.

It has been held by this Court in civil suits generally that an infant is incapable of appearing for himself or of appointing an attorney to appear and defend for him and any such appearance or defense amounts to nothing in contemplation of law. Hence no line of distinction can be drawn, as to the probability of injustice having been done to the infant, between the case where he suffers judgment to pass against him by default, and where the suit is defended in any form short of an appearance and defense by guardian. In each case the infant is deemed not to have had his day in court. Starbird v. Moore, 21 Vt. 529, 533.

In Fall River Foundry Co. v. Doty, 42 Vt. 412, 416, this Court held that an infant is incapable of appearing for himself and defendant his suit in court, or of appointing an attorney to appear and defend for him; and if he do so without the appointment of a guardian ad litem, and judgment be rendered against him, he has his remedy to reverse or vacate the judgment, whether the plaintiff knew of the infancy of the defendant or not at the time the judgment was rendered. In such a case the plaintiff proceeds at his peril in this respect. In regard to the necessity for the appointment of a guardian ad litem for an infant defendant, see, 43 C.J.S. Infants, § 109 b, pp. 284, 286; 27 Am.Jur. Infants, § 120, p. 840.

We have found several authorities and cases involving bastardy proceedings in which one or both of the parties were minors.

The courts are not in agreement as to whether the general rule that an infant plaintiff must be represented by an adult next friend or guardian ad litem applies to filiation proceedings. It has been said that every reason which can be suggested for the suit of an infant by guardian ad litem or prochein ami in any civil case, in behalf of the infant or the person prosecuted, is applicable to bastardy proceedings. Other cases, however, have taken the view that a guardian ad litem or next friend is unnecessary, some stating as a reason therefor that the state is the real plaintiff and the mother is merely the prosecuting witness. 7 Am.Jur., Bastards, § 93, p. 687. See Annotations, 52 L.R.A.,N.S., 800; 50 A.L.R.2d 1029; 10 C.J.S. Bastards, § 51, p. 152.

This jurisdiction is committed to the proposition that the plaintiff, if a...