Copes v. Malcarne

• Citation: 172 A. 89,118 Conn. 304
• Court: Supreme Court of Connecticut
• Decision Date: 03 April 1934
• Parties: COPES v. MALCARNE.

172 A. 89

118 Conn. 304

COPES v. MALCARNE.

Supreme Court of Errors of Connecticut.

April 3, 1934

Appeal from Superior Court, Middlesex County; Ernest A. Inglis Judge.

Bastardy proceeding by Amelia Copes against Joseph Malcarne. Judgment for the plaintiff, and appeal by the defendant.

No error.

William M. Harney, of Hartford, for appellant.

Leonard O. Ryan, of Middletown, for appellee.

Argued before MALTBIE, C.J., and HAINES, HINMAN, BANKS, and AVERY JJ.

AVERY Judge.

Plaintiff, on August 18, 1933, filed with a justice of the peace of the town of Haddam a complaint charging the defendant with being the father of a bastard child, born August 19, 1930. The justice thereupon issued a warrant to a constable of the town of Killingworth, directing the arrest and production of the defendant forthwith before the justice. Thereafter the constable filed a return stating that, after diligent search, he had been unable to find the body of the defendant within his precincts, and that on that date he had left a true and attested copy of the complaint and warrant at the usual place of abode of the defendant in Killingworth. Thereafter, on September 5th, the defendant appeared with counsel before the justice, and the counsel filed a plea in abatement on the ground, among others, that personal service had not been made upon the defendant. The plea was overruled by the justice, and the defendant was bound over to the superior court. In that court, the plea in abatement was renewed and overruled by the court. Thereafter trial was had and judgment entered in favor of the plaintiff.

Upon this appeal, the only question involved is the action of the trial court in overruling the defendant's plea in abatement on the ground stated, the claim being that the service made upon the defendant was not sufficient to institute a bastardy action, as his body was not actually arrested, and the only way in which the process was served was by leaving it at his usual place of abode. In this state bastardy proceedings are civil and not criminal in their nature, and the general rules respecting civil cases are applicable to them. Pierzanowski v. Jezewski, 116 Conn. 704, 705, 164 A. 207; Hinman v. Taylor, 2 Conn. 357, 360; Naugatuck v. Smith, 53 Conn. 523, 525, 3 A. 550; Hamden v. Merwin, 54 Conn. 418, 425, 8 A. 670; Van Epps v. Redfield, 68 Conn. 39, 47, 35 A. 800, 34 L.R.A. 360; Hamden v. Collins, 85 Conn. 327, 330, 82 A. 636, 638. General Statutes, § 5469, provides: " Except as otherwise provided, process in any civil action shall be served by leaving a true and attested copy of it, including the declaration or complaint, with the defendant, or at his usual place of abode, in this state." General Statutes, chapter 304, relating to bastardy proceedings, sections 5867 to 5876, while providing for the issuance of a warrant upon proper complaint and the arrest of the body of the defendant, make no provision for serving the process upon him otherwise than as provided for in other civil actions under the General...