Hanisky v. Kennedy
| Decision Date | 20 September 1893 |
| Citation | 56 N.W. 208,37 Neb. 618 |
| Parties | HANISKY v. KENNEDY. |
| Court | Nebraska Supreme Court |
The prosecution of the father of a bastard child, under chapter 37, Comp. St., does not abate by the death of the child pending the prosecution.
Commissioners' decision. Error to district court, Fillmore county; Morris, Judge.
Action by Emma Hanisky against M. A. Kennedy for bastardy. From a judgment dismissing the action, plaintiff brings error. Reversed.John D. Carson and Hastings & McGintie, for plaintiff in error.
R. Cunningham, for defendant in error.
On the 15th of May, 1889, Emma Hanisky filed a complaint before the county judge of Fillmore county, alleging she was a single woman and pregnant of a bastard child, and that M. C. Kennedy was the father of such child. Such proceedings were had that Kennedy was held to answer said complaint at the next term of the district court of said county. This court convened in November of that year, and, it being made to appear to the court that the child was born on the 22d day of September, and had died on the 26th day of October, following, the district court, on motion of the defendant, Kennedy, dismissed the action. The plaintiff took an exception to this, and brings the case here on error.
The sole question presented by this record is whether or not the pending action abated by reason of the death of the child. The answer to this question must depend upon the construction of section 6, c. 37, Comp. St., entitled “Illegitimate Children,” which provides “that in case the jury find the defendant guilty, or such accused person, before the trial, shall confess in court that the accusation is true, he shall be adjudged the reputed father of said child, and shall stand charged with the maintenance thereof, in such a sum or sums as the court may order and direct, with payments of costs of prosecution and the court shall require the reputed father to give security to perform the aforesaid order. * * *” It will be seen from this statute that the object of this proceeding is that the complainant may have the verdict of a jury and a judgment of the court as to whether the person accused is the father of the bastard child. If the jury shall so find, then it becomes the duty of the court to render a judgment (a) that the defendant is the reputed father of the child; (b) that he pay or secure $______ to maintain the child; (c) that he pay the costs of the prosecution. This much the...
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