Bowen v. Parsons

• Decision Date: 10 October 1916
• Citation: 90 S.E. 336,78 W.Va. 791
• Parties: BOWEN v. PARSONS.
• Court: West Virginia Supreme Court

90 S.E. 336

78 W.Va. 791

BOWEN v. PARSONS.

Supreme Court of Appeals of West Virginia.

October 10, 1916

Syllabus by the Court.

To warrant recovery in a bastardy proceeding by a married woman it is absolutely necessary to prove the existence of all the conditions prescribed by the statute as prerequisites to the right of a married woman to institute and maintain such a proceeding; the right being a purely statutory one.

No recovery can be had in such case, in the absence of proof that the prosecutrix had lived separate and apart from her husband, for one year or more, and had not cohabited with him, at any time within such period of separation, and that she was delivered of a child after the expiration of such period and while the separation continued.

The complaint instituting such proceeding is amendable, if defective, and defects therein are waived by failure to challenge its sufficiency, by a motion to quash or otherwise the proceeding being a civil one in its nature.

Error to Circuit Court, Cabell County.

Action by Zula Bowen against E. E. Parsons. Judgment for plaintiff and defendant brings error. Reversed and remanded.

Daugherty & Riggs, of Huntington, for plaintiff in error.

J. W Perry, of Huntington, for defendant in error.

POFFENBARGER J.

This writ of error is to a judgment rendered on a verdict in a bastardy proceeding instituted apparently by a married woman.

Both the complaint and the warrant describe the prosecutrix as being a married woman living separate and apart from her husband, and that she is a married woman may possibly be inferred from some of the testimony, but there is absolutely no proof that she had lived separate and apart from her husband for one year prior to the birth of the child, and without cohabitation with him, within that period. This unproved fact is absolutely essential to the maintenance of the proceeding, which is entirely statutory. It can be instituted and maintained only by such persons and in such manner as the statute prescribes. A married woman can maintain it only under certain conditions. She must have lived separate and apart from her husband for a year or more, must not have cohabited with him at any time within that period, and must have been delivered of the child in question after the expiration of such year, and while the separation continued. Code, c. 80, § 1 (sec. 3927). As the statute does not confer the right under any other circumstances, it does not exist, and, to maintain the proceeding and recover a judgment, the prosecutrix must prove the existence of the conditions prescribed.

Much of the argument on both sides goes...