Brown v. State ex rel. Pavey

• Decision Date: 27 July 1932
• Docket Number: 14,346
• Citation: 182 N.E. 263,94 Ind.App. 669
• Parties: BROWN v. STATE, EX REL. PAVEY
• Court: Indiana Appellate Court

182 N.E. 263

94 Ind.App. 669

BROWN v. STATE, EX REL. PAVEY

No. 14,346

Court of Appeals of Indiana

July 27, 1932

From Ripley Circuit Court; John R. Carney, Judge.

Proceedings in bastardy by the State, on the relation of Pauline Pavey against Burton Brown. Judgment against the defendant and he appealed.

Reversed.

Wycoff & Wycoff and Tramain & Turner, for appellant.

A. E Huntington, William E. Roof, Earl Wolfinger and Erving E Wright, for appellee.

OPINION

BRIDWELL, J.

This is a prosecution for bastardy, filed February 20, 1930, in which appellant was charged in the complaint with being the father of the unborn child of the relatrix. A trial of the cause before a jury resulted in a verdict as follows: "We, the jury, find for the plaintiff, that at the time of the filing of the complaint herein, the relatrix, Pauline, was pregnant with a bastard child as alleged, and that on the 9th day of August, 1930, said Pauline Pavey, was delivered of a stillborn child, and that the defendant, Burton Brown, is the father of said child." Such further proceedings were had that the court rendered judgment on the verdict, adjudging the appellant to be the father of said child, and in favor of the relatrix and against the appellant, fixing the amount of the judgment at four hundred dollars. Appellant filed his motion for a new trial, which was overruled; he then filed a motion to modify the judgment, which motion was also overruled. An exception to the overruling of each motion was taken and this appeal perfected, the errors assigned being the overruling of said motions.

Appellee's brief states the controversy presented as follows: "The real question now before this court is whether the law so far recognizes the existence of an unborn child, that when a prosecution is commenced before its birth and it is stillborn before verdict and judgment the court should give judgment in such sum as seems just, or should the action abate."

We are of the opinion that the principal question for determination is as to whether a judgment may be entered against a defendant in a bastardy proceeding for any amount, other than costs, where, as here, the undisputed evidence proves the birth of a dead child and the beginning of a proceeding authorized by statute, by the filing of a complaint during pregnancy; and where the jury finds such facts and further finds that the defendant is the father of said child.

In an action of this character the rights of interested parties are given, controlled and limited by sections 1049 to 1070 inclusive, Burns R. S. 1926. Sec. 1049 authorizes the beginning of a bastardy proceeding when any woman who has been delivered of, or is pregnant with, a bastard child shall make a complaint thereof in writing, under oath, before any justice of the peace, charging any person with being the father of the child, and this, and subsequent sections, provide for the method of procedure. After a hearing before the justice where the cause is pending, such justice must, if he adjudge the defendant to be the father of such child, transmit a transcript of the proceedings before him to the clerk of the circuit court of the proper county, where the action is filed and docketed as a cause pending. (Sections 1053 and 1055.) If the defendant, in the circuit court, deny the charge, the issue shall be tried by the court or a jury. (Sec. 1057.) If the jury find that the defendant is the father of such child, . . . he shall be adjudged the father of such child, and stand charged with the maintenance and education thereof. (Sec. 1062.)

Section 1063 provides that the court shall, on such verdict and judgment, make such order as may seem just for securing such maintenance and education to such child, by the annual payment to such mother (or if she be dead or an improper person to receive the same, to such other person as the court may direct) of such sums as may be adjudged proper, and shall render judgment for the same, specifying the terms of payment.

Sec. 1066 allows the dismissal of the suit by the prosecuting witness (relatrix) if she be an adult, at any time before final judgment, if she will first enter of record an admission that provision for the maintenance of the child has been made to her satisfaction; if she be a minor, she may dismiss such suit, if it be first shown to the satisfaction of the court in which the same is pending that suitable provision has been made and properly secured for the maintenance of the child, and a finding of the court to that effect entered of record.

Under Sec. 1064, upon the death of any bastard child after judgment rendered, and before the expiration of the time limited for the last payment of such judgment, the court rendering such judgment may make such reduction in the amount of the same as may be rendered proper and just in consequence of such death.

From the foregoing cited sections of our statutory laws relating to proceedings in bastardy, and from the entire scope of the legislation enacted on the subject matter, we think it clear that no judgment, except for costs can be legally rendered, other than a judgment securing to such bastard child maintenance and education. These statutes plainly show that the only judgment authorized by them is one for such purpose. It is well settled in our state that the money recovered in bastardy prosecutions, and the benefits of the judgment are primarily for the child. Allen v. State ex rel. Harrell (1835), 4 Blackf. 122; Canfield v. State ex rel., etc. (1877), 56 Ind. 168; Heritage v. Hedges (1880), 72 Ind. 247; Lewis v. Hershey, Adm'r (1910), 45 Ind.App. 104, 90 N.E. 332; Price v. State ex rel., etc. (1918), 67 Ind.App. 1, 118 N.E. 690.

In the case of Allen v. State ex rel., etc., supra (a bastardy proceeding), an order was made against the defendant that he pay into court an amount fixed to defray the lying-in expenses of the relatrix. The court said "The statute only authorizes, in this proceeding, a judgment against the defendant for such sum or sums of money as the court may direct for the maintenance of the child, and a judgment for costs. The damages for the seduction of the mother, or the expenses of her lying-in, are not the objects of this kind of prosecution. The law has, in those cases, provided other remedies." The statute then being construed was similar in its main features to...