Bratt v. Cornwell
| Decision Date | 31 January 1911 |
| Citation | 70 S.E. 271,68 W.Va. 541 |
| Parties | BRATT v. CORNWELL. |
| Court | West Virginia Supreme Court |
Submitted June 11, 1909.
Syllabus by the Court.
A bastardy proceeding is a civil case, from its very nature involving a matter in controversy of greater value or amount than one hundred dollars, and may be appealed by the prosecutrix when dismissed erroneously.
A failure, at any term, to enter a formal order of continuance in a bastardy case does not operate as a discharge of the accused or the release of his recognizance.
The last clause of point 2 of the syllabus published in Billingsley v. Clelland, 41 W.Va. 234, 23 S.E. 812 is not the law of this state, since decision in that case was by an equally divided court.
Error to Circuit Court, Preston County.
Action by Matilda Bratt against W. M. Cornwell. Judgment of dismissal, and plaintiff brings error. Reversed and remanded.
Neil J Fortney, for plaintiff in error.
P.J Crogan, for defendant in error.
Matilda Bratt instituted proceedings in bastardy against William Cornwell, and the accused entered into the required recognizance in the penalty of $350 for his appearance at the next term of the circuit court of the county, there to answer the charge and to abide by and perform the order of the court in relation thereto. At the term of court at which the accused was thus bound to appear, no proceedings were had in the case. And no order continuing the case was made by the court at that term. At a subsequent term the court held that the accused had been discharged by the failure to make an order continuing the case, and adjudged that the case be dismissed. The prosecutrix by this writ of error complains of that dismissal.
There is a motion to dismiss the writ of error as improvidently awarded. It is argued that there is no jurisdiction for appeal--that the case does not come within the description of any of those as to which an appeal or writ of error shall lie to this court. We must overrule this motion. Cases in bastardy under our statute, though criminal in form, are in effect civil suits. Bastardy cases are usually so considered. Hogg's Treatise and Forms, § 798; Hutchinson's Treatise, § 1493; Swisher v. Malone, 31 W.Va. at page 446, 7 S.E. at page 439. Then, does the case involve a greater amount than one hundred dollars? We hold that it does. The amount which a plaintiff claims is usually the criterion for appeal in his behalf. It is true the proceedings in a bastardy case do not demand a particularly stated amount. It happens that the form of those proceedings as fixed by the statute does not call for the allegation of an amount claimed on the part of the complainant. The support of the child, by such annually paid sums and for such term of years as the court shall order, is sought. In advance of the judgment we cannot say what that will amount to. But we do observe that the recovery of more than one hundred dollars in this particular is contemplated by the statute. We know judicially that the reasonable maintenance of a child, less than three years old, for a term of years, until it may be apprenticed or be able to support itself, amounts to more than that sum. We know from the character of the case that the complainant seeks a judgment for the support of the infant in excess of that sum. It affirmatively appears from the record-- from the very nature of the case disclosed by the record--that such an amount is in controversy. Complainant's suit has been dismissed, and she has been cut off from prosecuting a statutory proceeding by which she may obtain judgment on behalf of the child for a thing which in reason, sense, and experience, must be of more value than the amount necessary to entitle her to the jurisdiction of this court on writ of error from that dismissal. It would be extremely technical to deny her the right of appeal.
Did the failure of the court to enter an order continuing the case operate as a discharge of the accused? It is insisted that this question is foreclosed by the decision in Billingsley v. Clelland, 41 W.Va. 234, 23 S.E. 812. It is true that there is dictum in one of the opinions in that case, answering the question in the affirmative, and that a point of the syllabus has been published therein accordingly. But decision of that case was by an equally divided court. Therefore it is not a binding precedent. A reading of the opinions in the case shows that a majority of the court could not have concurred in the syllabus which has been improperly published in the reports. Besides, we cannot approve the dictum therein that a bastardy case must be continued by order entered of record, to keep the case alive and the recognizance of the accused in force. Judge Brannon, who concurred in the result reached by the opinion in which that dictum appears, is satisfied that it is not sound. The point at any rate was not vitally necessary to a decision of that case. It was not directly involved therein. That case was not a bastardy proceeding.
The plain, common sense view of the meaning of our statute is that the...
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