Cottrell v. State

• Citation: 9 Neb. 125,1 N.W. 1008
• Parties: GEORGE COTTRELL, PLAINTIFF IN ERROR, v. THE STATE OF NEBRASKA, DEFENDANT IN ERROR.
• Decision Date: 12 August 1879
• Court: Nebraska Supreme Court

9 Neb. 125

1 N.W. 1008

GEORGE COTTRELL, PLAINTIFF IN ERROR,

v.THE STATE OF NEBRASKA, DEFENDANT IN ERROR.

Supreme Court of Nebraska.

Filed August 12, 1879.

Error from the district court for Richardson County.Schoenheit & Thomas, for plaintiff in error.

Attorney General Maule and Wardell, for defendant in error.

MAXWELL, Ch. J.

--The plaintiff in error was arrested, tried, and found guilty under the provisions of the bastardy act of 1875. The case is brought into this court by petition in error. The errors assigned are-- First, the court erred in treating the case as a criminal case, and in permitting the same to be prosecuted in the name of the state by the district attorney; second, because the “act for the maintenance and support of illegitimate children,” approved February 25, 1875, is of no validity, not having been signed by the president of the senate; third, because there is no law in force in the State of Nebraska under which this proceeding could be sustained, and the court erred in not dismissing the case; fourth, because the complaint sets out no cause of action, either civil or criminal, against the plaintiff in error; fifth, because the district court had no jurisdiction.

In Denning v. The State, Wright's Report, 564, the supreme court of Ohio, in a circuit decision, say: “A proceeding in bastardy is only quasi-criminal, and, if brought in the name of the state at all, it should appear to be on the relation of the prosecuting witness. It is more proper to use her name alone.” This case seems to have been followed in Ohio under a statute that appears to be similar to our own. An examination of the cases in the reports of that state will show that cases have been prosecuted indiscriminately in the name of the state, or in the name of the prosecuting witness or municipality liable for the support of the child. State v. Smith, Tappan's Report, 143; State v. Farley, Wright's Report, 464; Porter v. The State, 23 Ohio, 320; State v. Morrow, 2 W. L. M. 308;State v. Courtnay, id. 289; Denning v. The State, Wrights Report, 564. In some of these cases, however, the action was upon the recognizance. Perkins v. Mobly, 4 Ohio, St. 668; Maxwell v. Campbell, 8 id. 265; Caster v. Krise, 9 id. 402; Mussar v. Stewart, 21 id. 353; Roth v. Jacobs, 21 id. 646; Hartman v. Sherwin, 15 id. 43; Darby v. Carson, 9 Ohio, 149;Hawes v. Cooksey, 13 id. 242. It will be seen that a very large proportion of the reported cases have not been prosecuted in the name of the state, and, being essentially a civil action, the better course is to conduct the prosecution in the name of the real party in interest. But in such a case the state is a mere trustee, and the real party in interest obtains the benefit of the judgment, the object of the action being merely to enforce the discharge of a civil and moral obligation--that of a support by a father of his own child. The judgment, therefore, is a bar to another action for that purpose. Had objections been made at the proper time to the form of the action, the court should have caused the real party in interest to be substituted as plaintiff, and the cause then proceed in the name of the substituted party, but having failed to do so the objection is waived.

The second and third assignments of error may be considered together. It is claimed that the “act for the maintenance and support of illegitimate children,” approved February 25, 1875, is void, because not signed by the president of the senate. An inspection of the original act, in the office of the secretary of state, shows that the act passed the house of representatives, and was duly attested, and was signed by the speaker of the house. The act is also attested by the secretary of the senate, and is approved by the governor, but is not signed by the...