Dehler v. State ex rel. Bierck

• Citation: 53 N.E. 850,22 Ind.App. 383
• Parties: DEHLER v. STATE ex rel. BIERCK.
• Decision Date: 18 May 1899
• Court: Indiana Appellate Court

22 Ind.App. 383
53 N.E. 850

DEHLER
v.
STATE ex rel.
BIERCK.

Appellate Court of Indiana.

May 18, 1899.

Appeal from circuit court, Jefferson county; P. E. Bear, Judge.

Action for bastardy by the state, on the relation of Anna Bierck, against William E. Dehler. From a judgment entered on a verdict against him, defendant appeals. Affirmed.

[53 N.E. 851]

L. V. Cravens, A. E. Clashman, and Simeon E. Leland, for appellant. Van Asdol & Francisco, Sulzer & Bear, and C. J. Roberts, for appellee.

WILEY, J.

This was an action for bastardy, in which appellant was charged in the complaint with being the father of the unborn child of the relatrix. A trial of the cause before a jury resulted in a verdict finding appellant to be the father of the child. Such proceedings were had that the court rendered final judgment on the verdict, and fixed the amount of the judgment for the support of the child at $800. Appellant has assigned error: (1) That the court erred in overruling his motion to dismiss the action; (2) that the court erred in “overruling his motion objecting to the submission” of the case for trial; (3) that the court erred in overruling the motion for a new trial; (4) that the court erred in overruling his motion to modify the judgment; (5) that the court erred in overruling his motion awarding the custody of the child to him; (6) the court erred in requiring him to replevy the judgment after giving an appeal bond; (7) that the court erred in hearing testimony as to the financial condition of Valentine Dehler, father of appellant, and in receiving evidence of the contents of the bond before the justice, after the motion for a new trial had been overruled. We will consider these alleged errors in their order. In the court below appellant appeared, and moved the court in writing to dismiss, and based his motion upon three grounds: (1) That the relatrix was under the age of 21 years, and could not prosecute the action without a guardian or next friend; (2) that the action could not be prosecuted without the appointment of a guardian; and (3) that no competent or responsible person had consented, in writing, to appear as the next friend of relatrix.

Appellant urges that under the provision of section 256, Horner's Rev. St. 1897, before any process shall be issued in the name of an infant who is sole plaintiff, a competent and responsible person shall consent, in writing, to appear as next friend, who shall be responsible for costs, etc. This section of the statute is not applicable in a bastardy proceeding, for the evident reason the relatrix is not “sole plaintiff.” The action must be prosecuted in the name of the state on the relation of the prosecuting witness. Burns' Rev. St. 1894, § 992. So, by the plain language of the statute, she is not the plaintiff, for the statute refers to her as the “prosecuting witness,” and requires the action to be prosecuted in the name of the state. In Ex parte Haase, 50 Ind. 149, it was held that the prosecuting witness was not plaintiff in the suit. The action is not for the benefit of the relatrix. If a recovery is had, she is not entitled to a cent of the money recovered for her own use and benefit, but it must go to the support of the child. Ex parte Haase, supra; Dibble v. State, 48 Ind. 470. In State v. Smith, 55 Ind. 385, an application was made by the relatrix for a change of venue. Biddle, J., said: “It will be noticed that the venue may be changed upon the application of either party, and also that the application in this case is made on behalf of the relatrix. We have decided that the relatrix is not a party to a prosecution for bastardy,”-citing Ex parte Haase, supra. The state is the plaintiff, and the relatrix is the witness. It follows, therefore, that the application is not made within the terms of the statute. This court, in Williams v. State, 3 Ind. App. 351, 29 N. E. 1079, held the relatrix was not a party to the action. Further discussion on this branch of the case would be useless. The court properly overruled appellant's motion to dismiss.

Appellant filed his written objection to the submission of the cause for trial on the grounds: (1) That relatrix was a minor, and no guardian had been appointed for her; (2) that no competent or responsible person had consented, in writing, to appear as her next friend; and (3) that by the complaint and other papers filed there was no issue to be tried. What we have said as to the motion to dismiss disposes of the first and second grounds of this objection. The third ground of objection was based on the fact that up to that time appellant had not filed an answer, and hence he urges that there was no issue for trial. The complaint before us is sufficient. Appellant had had an...