Clark v. Carey
| Citation | 60 N.W. 78,41 Neb. 780 |
| Decision Date | 19 September 1894 |
| Docket Number | 5834 |
| Parties | MARVIN A. CLARK v. LIZZIE J. CAREY |
| Court | Supreme Court of Nebraska |
ERROR from the district court of Douglas county. Tried below before DAVIS, J.
AFFIRMED.
Schomp & Corson, for plaintiff in error:
The justice of the peace had no jurisdiction to issue the warrant of arrest, and bind the defendant over to the district court. The proceedings before the justice were void. The complainant was not a resident of Douglas county.
A minor cannot obtain a residence or domicile of her own. The complainant could not change her residence from the residence of her father in Thurston county, where it had been for seven years. (Hiestand v. Kuns, 46 Am. Dec. [Ind.], 481; Warren v. Hofer, 13 Ind. 169; Allen v. Thomason, 54 Am. Dec. [Tenn.], 56; Blumenthal v. Tannenholz, 31 N. J. Eq., 194; De Jarnet v. Harper, 45 Mo. App., 415; Sharpe v. Crispin, 1 L. R., P. & D. Div. [Eng. ], 611.)
The court erred in overruling the motion for a continuance. (Miller v. State, 29 Neb. 437; Gandy v. State, 27 Neb. 707; Johnson v. Dinsmore, 11 Neb. 394, 395; Singer Mfg. Co. v. McAllister, 22 Neb. 359; Ingalls v. Noble, 14 Neb. 273; Burrell v. State, 25 Neb. 581; Stevenson v. Sherwood, 22 Ill. 238.)
The judgment is void, because it orders the money paid to a minor. (Kleffel v. Bullock, 8 Neb. 343.)
Chas. Offutt and Charles S. Lobingier, contra:
The justice of the peace before whom the complaint was made had jurisdiction of the subject-matter, and of the person of the plaintiff in error. (Consolidated Statutes, secs. 1977, 1979, 1984.) The statute is explicit on this point, and Ingram v. State, 24 Neb. 37, does not support plaintiff in error's contention, though the writer of the opinion in that case inadvertently used the word "county" instead of "state." But even conceding that the Douglas county justice of the peace had no jurisdiction, plaintiff in error waived that objection by making four motions for continuances, appearing and cross-examining witnesses, and otherwise invoking the powers of the court, than on the single question of jurisdiction. (Porter v. Chicago & N. W. R. Co., 1 Neb. 14; Cropsey v. Wiggenhorn, 3 Neb. 108; Crowell v. Galloway, 3 Neb. 215.)
Even if complainant had been required to have been a resident of Douglas county, she fulfilled that requirement, since the testimony shows that her intention as to change of residence was fully within the rule of Swaney v. Hutchins, 13 Neb. 268. In plaintiff in error's argument on this point he confuses "residence" with "domicile;" the former is much the more temporary in its character.
Rulings on motions for continuances are discretionary with the trial court. (McDonald v. McAllister, 32 Neb. 517; Singer Mfg. Co. v. McAllister, 22 Neb. 359; Ingalls v. Noble, 14 Neb. 273; Burrell v. State, 25 Neb. 581.) Plaintiff in error had already been allowed three continuances, and it was no abuse of discretion to deny the fourth. The rule that counter-affidavits should not be considered on a motion for continuance applies only to criminal cases and to matters which it is alleged will be proved by an absent witness. (Williams v. State, 6 Neb. 334.) It is well settled that the bastardy action is a civil one. (Ingram v. State, 24 Neb. 35.)
The statute (Con. Stats., sec. 1982) authorizes a judgment "in such a sum or sums as the court may order or direct," and the authorities give the trial court a wide discretion in fixing the amount. (Jerdee v. State, 36 Wis. 170; County of Mills v. Hamaker, 11 Iowa 209; Goodwine v. State, 31 N.E. [Ind.], 554; State v. Zeitler, 35 Minn. 238.) The action is designed not simply "to preserve harmless the county," but also for the protection and benefit of the mother. (Hoffman v. State, 17 Wis. 615; Baker v. State, 65 Wis. 50.) So, lying-in expenses are proper items of allowance (Judson v. Blanchard, 4 Conn., 566), even where the child dies early and the public has incurred no expense. (Jerdee v. State, 36 Wis. 170; State v. Zeitler, 35 Minn. 238; State v. Eichmiller, 35 Minn. 240.)
A judgment is not defective because rendered "in favor of a minor" (Smith v. Redus, 9 Ala., 99); and even if it were, the point was not raised either in the motion for a new trial or petition in error. The same is true of the objection that plaintiff in error was not required to renew his bonds. Moreover, this fact does not appear from the record, and it will be presumed that the proceedings were regular. (Deroin v. Jennings, 4 Neb. 100; Buchanan v. Mallalieu, 25 Neb. 201; Becker v. Simonds, 33 Neb. 685; Garneau Cracker Co. v. Palmer, 28 Neb. 307; Hastings School District v. Caldwell, 16 Neb. 68.) Even if there had been a failure to make such renewal, it would have been, at most, an irregularity, not only without prejudice to the plaintiff in error, but actually to his advantage, and hence not ground for reversal. (Dillon v. Russell, 5 Neb. 484; Pollard v. Turner, 22 Neb. 366; Western Horse & Cattle Ins. Co. v. Putnam, 20 Neb. 331; Hutchinson v. State, 19 Neb. 262; Village of Ponca v. Crawford, 18 Neb. 557; Deitrichs v. Lincoln & N. W. R. Co., 13 Neb. 361; Gibson v. Sullivan, 18 Neb. 558; Chamberlain v. Brown, 25 Neb. 434.)
The facts are stated in the opinion.
This was a bastardy proceeding in the district court for Douglas county, in which the plaintiff in error was adjudged guilty and which judgment he has brought into this court for review by petition in error.
The first error alleged is the overruling of his motion to dismiss for want of jurisdiction. The complainant, a minor seventeen years of age, resided in Thurston county with her parents at the time the child in question was begotten. About three weeks previous to the filing of the complaint she left her home without the knowledge or consent of her parents, and went to the city of Omaha, in Douglas county. On the 20th day of November, 1891, she lodged a complaint with John S. Morrison, a justice of the peace for Douglas county, upon which the plaintiff in error was arrested. On the 24th day of the same month a hearing was had before said justice, which resulted in an order requiring the accused to give bond for his appearance at the next term of the district court. Soon thereafter the complainant was taken by her father to his home in Thurston county, where she remained until January 14, 1892. On the day last named she returned to Omaha and took up her abode at the institution mentioned as the "Open Door," where she remained until the trial, on the 27th day of June following, and where her child was born on the 11th day of March. Her expenses at the "Open Door" were paid by her father; but on cross-examination she was asked, "Where do you expect to go when the trial is over?" to which she answered, "I do not know where I shall go."
Upon this record it is contended that she was not a resident of Douglas county within the meaning of chapter 37, Compiled Statutes, entitled "Illegitimate Children," wherefore the action of the justice of the peace of said county was without jurisdiction and void. In that view we cannot concur. By section 1 of the chapter above named it is provided: "That on complaint made to any justice of the peace in this state by any unmarried woman resident therein who shall hereafter be delivered of a bastard child, or being pregnant with a child which, if a born alive, may be a bastard, accusing * * * any person of being the father of such child, the justice shall * * * issue his warrant, directed to the sheriff, coroner, or constable of any county of this state, commanding him forthwith to bring such accused person before said justice," etc. It will be observed that the jurisdiction thus conferred is not by any express provision restricted to justices of the peace for the county where the complainant resides, although it was intimated in Ingram v. State, 24 Neb. 33, 37 N.W. 943, that such limitation is to be implied from the language of the act. It has been frequently said by this court that this proceeding is in the nature of a civil action. By that is meant that many of the rules applicable to actions under the Code will be applied in prosecutions for bastardy. However, strictly speaking, it is a proceeding sui generis; that is, neither a civil action nor a criminal prosecution, within the statutory meaning of the terms. (State v. Mushied, 12 Wis. 561; State v. Jager, 19 Wis. 235; Baker v. State, 65 Wis. 50, 26 N.W. 167.) One of the principal objects of the proceeding is to secure the public against liability for the support of a child which is, or is liable to become, a public charge. It is clear that the term "resident" or "residence," as applied to the complainant, is not used in the sense in which it is employed in the Civil Code, but applies as well to the county in which the mother of the child may actually reside, and which is liable to be charged with its support, although she may in fact have a home in another county or state; and while it is not doubted that this proceeding may be prosecuted in the...
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