Crum v. Brock

• Decision Date: 17 November 1924
• Docket Number: 24421
• Citation: 101 So. 704,136 Miss. 858
• Court: Mississippi Supreme Court
• Parties: CRUM v. BROCK. [*]

101 So. 704

136 Miss. 858

CRUM v. BROCK. ^[*]

No. 24421

Supreme Court of Mississippi

November 17, 1924

Division A

APPEAL from circuit court of Tippah county, HON. J W. T. FALKNER, Special Judge.

Bastardy proceeding by Mrs. Ada Brock against Hiram Crum. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Judgment reversed and cause remanded.

W. C. Sweat and Ely B. Mitchell, for appellant.

The proceeding under chapter 7 of Hemingway's Code of Mississippi of 1917, section 217, is in the nature of a civil proceeding. Therefore, the pleading and practice governing civil suits will be followed under this chapter. Welford v. Harward, 127 Miss. 88, 89 So. 812. The rule in the United States seems to be that under a statute providing for the institution of bastardy proceedings by a "single" or "unmarried woman," a married woman even though she is living apart from her husband is not entitled to maintain such a proceeding, 17 Ala. 328; C T. v. State, 21 Fla. 171; Sword v. Nester, 3 Dana. (Ky.) 453; Welch v. Claiborne, 94 Miss. 443; Gaffer v. Austin, 8 Vt. 70; State v. Brill, Ohio N. P. 311. The word "single" means unmarried or not having been married. 36, C. J. 460.

Thos. E. Pegram, for appellee.

The fifth assignment of error is: That the court erred in allowing the witnesses, Ike Cheetwood and Arthur Swinford to refuse to testify on the ground that their testimony might incriminate them. The record shows that these two witnesses were under indictment on a charge of perjury growing out of their testimony before the justice of the peace, A. B. Roten, when this bastardy case was tried before him.

A trial judge has no right under the law of the land to force a witness to testify when that witness unmistakably states that he does not want to testify on the ground that his testimony might incriminate him on a charge for which he is then under indictment. Hence, no error here.

The second assignment of error is: The court in overruling appellant's motion to dismiss the case for want of jurisdiction because the declaration shows on its face that the appellee was not a single woman.

Appellant admits that this ground was not assigned in support of the motion in the trial court, but says that it is jurisdictional, and, herefore, may now be raised. It strikes me that this is not a jurisdictional question but a question of fact which might or might not preclude the complainant from prosecuting her suit, but, be that as it may, the law as set forth in the chapter on bastardy settled the question against appellant. Section 217, Hemingway's Code.

The first assignment of error is: The court erred in overruling appellant's motion to dismiss the case for want of jurisdiction. This is really the only contention of the appellant in this court to which there is even apparent merit. The question is: Is it essential to the prosecution of a bastardy case in the circuit court by the mother of a bastard child, where every step of the proceeding before the justice of the peace is regular and so certified to the circuit court, that the case or preliminary hearing shall have been docketed by such justice? Or to put it differently: Is there to be a miscarriage of justice and the appellee's, judgment declared void, merely on the ground that the justice failed to docket the matter or enter a judgment of such docket, where there is no specific direction in the chapter on bastardy or elsewhere to the effect that he should have done so?

Section 2225 of Hemingway Code, is the only section of our code giving directions to a justice of the peace as to the manner of using his docket. It stipulates that he shall enter the names of the parties and the date and amount of the judgment. This evidently embraces only civil suits in which a final judgment shall be entered. No final judgment can be entered by a justice in a bastardy case, no more than could be entered if a defendant be brought before him on a felony charge. All that is necessary for a justice of the peace to do in a bastardy proceeding, in order that the circuit court may have jurisdiction, is that he comply with the provisions of chapter 7, Hemingway's Code. Such procedure was not known to the common law. There is not a line in said chapter on bastardy, nor anything in said section 2225 that says that a bastardy proceedings shall be entered on the justice docket. Section 219, Hemingway's Code.

The provisions of this section are complied with almost to the letter. Except that the testimony taken before the justice was not, by agreement of counsel on both sides, reduced to writing.

So far as I have been able to find, there is complete harmony in all of the decisions of courts of last resort, where the question has been presented, and this includes our own court, to the effect that the purpose of the preliminary hearing before a justice of the peace or police officer of a bastardy complaint is to hold the accused man to the circuit or superior court, where the case may be tried on its merits; and the irregularities on the part of the justice court as to what should have or should not have been done thereat do not deprive the circuit court of jurisdiction to try the case on its merits. In other words, irregularities or discrepancies not affecting the substance of the proceedings on the merits will be disregarded. 7 C. J. 981, par. 91-8; 7 C. J. 981, (93) c; Easdale v. Reynolds, 9 N.E. 13; State v. Carroll, 101 N.W. 317; Parsons v. State, 24 S.E. 845; In Re Walker, 86 N.W. 510 (Nebr.) ; Altschuler v. Algaza, 21 N.W. 401; Morgan v. Stone, 93 N.W. 743; Armstrong v. Blankenbaker, 56 N.E. 681. The case of Ham v. West, 117 Miss. 340, settles the case at bar and warrants the affirmance thereof.

W. C. Sweat, for appellant in reply.

The case being a proceeding in bastardy it is governed by the chapter on bastardy, section 268 of the Code of 1906 (Section 217 of Hemingway's Code). The next section provides as follows: "It shall be the duty of the justice, in case the accused shall have been required by him to give bond, or in case he shall discharge the accused, if the woman shall have appealed, to return the proceeding to the circuit court forthwith."

It was clearly the intention of the legislature that the proceedings in bastardy should begin in the justice of the peace court. The circuit court has no original jurisdiction. The circuit court in order to acquire jurisdiction must have a judgment of the justice of the peace court, duly rendered in a proceeding brought in that court, showing what transpired in the justice of the peace court and without that judgment and without the transcript of that record the circuit court has no jurisdiction. The record in this case shows that this matter was never docketed by the justice of the peace; that he had rendered no judgment whatever in his court and there is no certificate from his court showing that the papers which were actually sent up were the transcript of the proceedings in his court. Therefore, the papers which were sent up by the justice of the peace in this case were of nullity. The justice court proceedings are absolutely void unless a judgment was rendered showing what was done. Underwood Typewriter Co. v. Taylor, 94 Miss. 584; Rayborn v. Cothern, 43 So. 70; Donald Bros. Merc. Co v. Marsh, 48 So. 230; Ball v. Sledge, 82 Miss. 747; Gardner v. Railroad, 78 Miss. 640.

If this court should hold in this case that the court has jurisdiction, it will in effect mean that hereafter there will be no necessity of proceedings of the justice of the peace court. All that it will be necessary to do by a woman who shall have been delivered of a bastard child would be to file a declaration in the circuit court against the defendant. Such a ruling by this court will in effect nullify the first three sections of the chapter on bastardy.

This court has held that jurisdiction in a bastardy proceeding is obtained by following the procedure prescribed for bringing the parties into court. Ham v. West, 117 Miss. 340. Proceedings in bastardy were unknown to the common law but the proceedings are purely statutory and will therefore be strictly construed and in order for the circuit court to have jurisdiction, the plaintiff must follow strictly the statutes in order to get into the circuit court. 3 R. C. L. 750. This court has held that the bastardy statutes of this state are penal in their nature and must be strictly construed. Welch v. Cleburn, 94 Miss. 443.

There is another matter of jurisdiction which is fatal to the case and that is the declaration on its face shows and the proof shows conclusively that the appellee in this case was a widow. She had been married but her husband was dead. The statute says: "When a single woman shall be delivered of a bastard or be pregnant with child, which if born alive would be a bastard . . ." A widow is not a single woman in contemplation of law, and while this point was not made in the court below, the point is jurisdictional and could be raised for the first time in this court, and inasmuch as the record shows conclusively that the plaintiff in this case was a widow the cause should have been dismissed for want of jurisdiction and we say this court should dismiss the cause for want of jurisdiction. 36 Cyc. 460, and authorities there cited.

Two witnesses were offered by the defendant to testify that they saw this plaintiff having intercourse with a man other than defendant about the time that she alleges that she became pregnant. These witnesses had testified to these facts in the justice...