Carlson v. Bartels, No. 31517.

• Court: Supreme Court of Nebraska
• Writing for the Court: SIMMONS
• Citation: 143 Neb. 680,10 N.W.2d 671
• Parties: CARLSON et al. v. BARTELS et al.
• Decision Date: 30 July 1943
• Docket Number: No. 31517.

143 Neb. 680
10 N.W.2d 671

CARLSON et al.
v.
BARTELS et al.

No. 31517.

Supreme Court of Nebraska.

July 30, 1943.

Appeal from District Court, Wayne County; Wenke, Judge.

Action by Doris Fay Carlson and Alma May Carlson by Helen Kayler, their next friend and mother, against Russel W. Bartels, administrator of the estate of Nels Carlson, deceased, for a determination that the plaintiffs are the children of Nels Carlson, deceased, and that his estate is liable for care, support and maintenance of the children wherein G. Oldenburg, Consul of Sweden, as attorney in fact for Anders Karlsson and others intervened. From an adverse judgment, defendant and interveners appeal.

Judgment reversed and action dismissed.

[10 N.W.2d 672]

Syllabus by the Court.

1. Jurisdiction of the subject-matter is the power to hear and determine cases of the general class to which the proceedings belong.

2. A father is under no legal liability to support his children born out of wedlock, except in those cases where such liability is imposed by statute.

3. In the absence of a statute, a cause of action for the support of a child born out of wedlock does not survive against the personal representative of the alleged father.

4. In the absence of statutory authority an equity court does not have the power to charge the estate of a deceased alleged father of children born out of wedlock with the support, maintenance and education of such children for the period subsequent to the father's death.

5. Under the declaratory judgment act an equity court has the power to determine the parentage of a child.

6. The granting of declaratory relief is a matter within the discretion of the court, to be exercised or not according to the circumstances of the case under consideration.

PAINE, J., dissenting.

Harry N. Larson, of Wakefield, and A. C. R. Swenson, of Omaha, for appellants.

Fred S. Berry, of Wayne, for appellees.

Heard before SIMMONS, C. J., and PAINE, CARTER, MESMORE, YEAGER and CHAPPELL, JJ.

SIMMONS, Chief Justice.

This is an action in equity, brought in the district court for Wayne county, wherein Helen Kahler as next friend of her two minor children sought for them a judgment that they are the children of Nels Carlson, deceased; that his estate is liable for the care, support and maintenance of said children; that the amount be determined and charged against his estate as a lien; that a trustee be appointed to hold, manage and disburse funds allowed, and for equitable relief. The Consul of Sweden intervened in opposition to plaintiffs' petition to assert the rights of brothers and sisters of the deceased (nationals of Sweden). The defendant administrator and Consul demurred on the ground that a cause of action was not stated, and the Consul on the added ground that the district court was without jurisdiction of the subject-matter of the action. The demurrers were overruled. The administrator and Consul answered separately, denying that the deceased was the father of the children, and the Consul alleging in his answer the same grounds as stated in his demurrer. Trial was had, a finding for the plaintiffs made and decree entered holding that the plaintiffs are the children of the deceased, that his estate was liable for their support, maintenance and education, and the sum of $3,250 was fixed as the amount to be paid into court, to be held subject to the court's order for that purpose. After motions for new trial were overruled, defendants appeal. We reverse the judgment of the trial court.

Three questions are presented: The jurisdiction of the district court over the subject-matter of the action; the holding that paternity was proved; and the right to recover against the estate of the deceased father.

The following facts are admitted by the pleadings: Plaintiff Doris Fay Carlson was born October 4, 1933, and Alma May Carlson was born December 18, 1938, both at a hospital in the city of Wayne, in Wayne county, and both the children of Helen Kahler; Helen Kahler was at all

[10 N.W.2d 673]

times involved herein the wife of one Ed Kahler; Nels Carlson was an unmarried man, a farmer, residing near Wayne, who died intestate October 9, 1940; his estate is being probated in Wayne county, and defendant is the administrator.

Established by the evidence of friends, neighbors, relatives, peace officers and others are the following facts. Helen Kahler and Ed Kahler had two children, not involved in this action. Mr. and Mrs. Kahler separated in 1931 following court action to compel him to support his wife and children, and thereafter Ed Kahler disappeared and has not since been seen by any one in or about his old haunts where his wife continued to live during all the time involved in this action. In May, 1932, Mrs. Kahler, with the two Kahler children, went to the nearby home of the deceased as his housekeeper, and remained there until Carlson's death. On each occasion, when the two children (plaintiffs) were born, Carlson took Mrs. Kahler to the hospital, paid the medical and hospital expenses, told the doctor he was the father in each instance, had the older child baptized by his minister, told friends and relatives that the plaintiffs were his children, and cared for them in his home as his own. Two policies of insurance were taken out in which Carlson and Mrs. Kahler were designated “husband” and “wife.” Carlson and Mrs. Kahler went with the children to visit friends, to town for marketing and generally lived at home and in the community as though they were husband and wife, although there were those who knew they were not. Plaintiffs have no estate, income or means of support.

It was established on cross-examination of the administrator that contingent claims on behalf of Alma May Carlson and Doris Fay Carlson were filed in the estate matter in county court.

Defendant offered the testimony of Carlson's sister and her husband to the effect that in 1940 the deceased denied the paternity of the children.

We come first to the question of the jurisdiction of the court over the subject-matter of the action. The question was first raised by demurrer and again by answer. Intervener Consul argues that, under the provisions of section 16, art. V of the Constitution of the state of Nebraska, and section 27-503, Comp.St.1929, this action is one where the original jurisdiction is in the county court.

“Jurisdiction of the subject-matter, in a court of record, is to be tested by the authorized extent of the powers of the court in respect of the cause of action before it.” Brandeen v. Lau, 113 Neb. 34, 201 N.W. 665. “Jurisdiction of the subject-matter is the power to hear and determine cases of the general class to which the proceedings in question belong.” 21 C.J.S., Courts, p. 36, § 23; 15 C.J. 734. See 14 Am.Jur. 368, § 168. See, also, 21 C.J. 34; 30 C.J.S., Equity, § 9, p. 327; 1 Pomeroy, Equity Jurisprudence, 4th Ed., 153. “The test for determining jurisdiction is ordinarily the nature of the case, as made by the complaint, and the relief sought.” 15 C.J. 734; 21 C.J.S., Courts, § 35.

We come then to the question as to whether or not the ultimate relief sought, i. e., a judgment for support, is within the power of any equity court to grant. In Craig v. Shea, 102 Neb. 575, 168 N.W. 135, such an action was held to be properly maintainable in equity against a living alleged father. May an action in equity be maintained against the representative of the estate of a deceased alleged father by children born out of wedlock to obtain money for their support, maintenance and education for the period subsequent to the father's death?

At common law the father is under no legal liability to support his children born out of wedlock. 7 C.J. 955; 10 C.J.S., Bastards, p. 84, § 18, subsec. c; 7 Am.Jur. 673, § 69. This is conceded by the plaintiffs to be the common-law rule. Plaintiffs argue that we should refuse to follow the common-law rule and hold that present day conditions and needs require that the father of a child born out of wedlock is under a nonstatutory obligation to support the child. Plaintiffs cite Doughty v. Engler, 112 Kan. 583, 211 P. 619, 30 A.L.R. 1065. The Kansas court has, however, held that their decision is a minority view. See Myers v. Anderson, 145 Kan. 775, 67 P.2d 542. That case goes no further than to hold that the living father is so liable.

Plaintiffs next argue that there is a statutory liability for support, basing their contention on our decision in Craig v. Shea, supra. In that case the child of a married woman sought in equity a decree determining her father, and for support from her alleged father. We there held that under the provisions of the pauper's

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statute, now as amended, section 68-101, Comp.St.Supp.1941, and the child abandonment act now section 28-458, Comp.St.1929, the plaintiff was entitled to support from the actual father. We held that “the Legislature intended to remove the restrictions imposed by the common law, to impose a duty not theretofore existing” [102 Neb. 575, 168 N.W. 136] and that “the burden of support of an illegitimate child of a married woman should, as in the case of an illegitimate child of an unmarried woman, be cast upon the man responsible for its existence.” The decision recognized that the common-law nonliability rule was in force in Nebraska, save as modified by statute, and held that it had been changed by legislative action only, however, to the extent to cast the burden of support of a child born out of wedlock to a married woman upon the father “as in the case” of such a child born to an unmarried woman. The decision does not go beyond that point and does not hold that the estate of the father, when deceased, is liable for that support in an action brought after the alleged father's death. The burden at that time upon the person adjudged to be the father of the child of an unmarried woman was to “stand charged with the maintenance thereof in such a sum or sums as the court may order and...