Dunn v. Dunn

• Citation: 155 S.E. 165
• Decision Date: 08 October 1930
• Docket Number: No. 209.,209.
• Court: United States State Supreme Court of North Carolina
• Parties: DUNN et al. v. DUNN et al.

155 S.E. 165

(199 N.C. 535)

DUNN et al.

v.DUNN et al.

No. 209.

Supreme Court of North Carolina.

Oct. 8, 1930.

Appeal from Superior Court, Lenoir County; Midyette, Judge.

Action by R. D. Dunn and others against Fred Douglas Dunn and others. Judgment for defendants, and plaintiffs appeal.

Affirmed.

Civil action in ejectment brought by collateral relations of Charles F. Dunn, deceased, against his alleged illegitimate children.

The plaintiffs allege that they are the heirs at law and next of kin to Charles F. Dunn, late of the county of Lenoir, state of North Carolina, and entitled to all the property, real and personal, of which he died seized and possessed; that the defendants, illegitimate children of the said Charles F. Dunn, have, since his death intestate, February, 1929, entered into possession of the lands left by him and taken possession of his personal property, under the mistaken belief that they were duly legitimatized by order of Lenoir superior court, entered at the August term, 1914; and that such action on the part of the defendants is wrongful and unlawful. It is further alleged that the attempted legitimation proceeding, set out in full in the complaint, is null and void, for that the petition, admittedly sufficient in substance, was addressed to the judge at term, rather than to the clerk; wherefore plaintiffs demand possession of the premises, damages, etc.

The substance of the petition is as follows: To Hon. Frank A. Daniels, Judge Presiding:

Charles F. Dunn, your petitioner, comes into court and respectfully showeth that he is the putative father of the following named illegitimate children, to wit, Fred Douglas, Abe Lincoln, James Blaine and Ben Butler, * * * recognized by your petitioner, and bear his surname, therefore, he respectfully prays that the court declare them to be the legitimate children of the petitioner.

The order entered thereon by the judge at term purports to legitimate said children, according to the prayer of the petition.

From a judgment sustaining a demurrer, interposed by the defendants, on the ground that the complaint does not state facts sufficient to constitute a cause of action, the plaintiffs appeal, assigning error.

Rountree & Rountree, of Wilmington, and Powers & Elliott and Geo. B. Greene, all of Kinston, for appellants.

Charles F. Rouse (of Rouse & Rouse), of Kinston, for appellees.

STACY, C. J.

Was, and is, the judgment purporting to legitimate the defendants, entered by the judge at term, valid, or is it null and void, because, under the law in force at the time, the original jurisdiction of petitions for legitimation was conferred on the clerk and not on the judge?

The pertinent statute operative in 1914 was Revisal 1905, § 263, now C. S. § 277, which reads as follows:

"The putative father of any illegitimate child may apply by petition in writing to the superior court of the county in which he resides, praying that such child may be declared legitimate; and if it appears that the petitioner is reputed the father of the child, the court may thereupon declare and pronounce the child legitimated; and the clerk shall record the decree."

The body of this statute assumed its present form as early as 1855 (Revised Code of N. C. ...