Harry EISLER, Jr., Director, Salem County Welfare Agency, Plaintiff, v. Joseph J. TOMS, Defendant

• Decision Date: 05 June 1978
• Citation: 160 N.J.Super. 272,389 A.2d 529
• Parties: Page 272 160 N.J.Super. 272 389 A.2d 529 Harry EISLER, Jr., Director, Salem County Welfare Agency, Plaintiff, v. Joseph J. TOMS, Defendant. Juvenile and Domestic Relations Court, Salem County, New Jersey
• Court: New Jersey Superior Court

Page 272

160 N.J.Super. 272

389 A.2d 529

Harry EISLER, Jr., Director, Salem County Welfare Agency, Plaintiff, v. Joseph J. TOMS, Defendant.

Juvenile and Domestic Relations Court, Salem County, New Jersey.

June 5, 1978

Mary E. Sibley, Salem, for plaintiff.

Wayland A. Lucas, Salem, for defendant.

NARROW, J. C. C. (retired and temporarily assigned on recall).

The sole question to be determined on this motion is whether a bastardy proceeding brought pursuant to N.J.S.A. 9:16-1 is barred by the general six-year statute of limitations. Strangely enough, neither counsel nor the court has found any case in New Jersey precisely in point.

The moving papers and attached affidavits disclose that Leona Hogate, unmarried, gave birth to a child on July 3, 1965; that shortly thereafter she sought to establish the paternity of the present defendant through the local welfare director but that the complaint she made at that time was never brought on for a hearing. During the latter part of 1977, some 12 years after the birth of the child, a new complaint was filed by the Salem County Welfare Board against defendant, seeking to establish the paternity of defendant and support for this child.

Defendant moves to dismiss the complaint, contending that it is barred by the six-year statute of limitations, N.J.S.A. 2A:14-1. This statute fixes six years as the time within which an action must be commenced for a number of different types of actions, including an action "for any tortious injury to the rights of another not stated in sections (N.J.S.A.) 2A:14-2 and (N.J.S.A.) 2A:14-3 of this Title," and it is admitted that these last two sections do not apply. Defendant further cites the case of State of New Jersey (F) v. M., 96 N.J.Super. 335, 233 A.2d 65 (App.Div.1967) as authority for the proposition that a bastardy proceeding is civil in nature and that the complaint charges him with the commission of a tortious injury to the rights of another, and that therefore it is included within the language of the statute and must be instituted within six years, after which it is barred.

However, I cannot agree with either premise. The cited case only decided that a bastardy proceeding is to be regarded as a civil proceeding insofar as it does not require a unanimous verdict. It did not undertake to classify a bastardy proceeding as either civil or criminal, and in referring to an earlier case, stated:

The court concluded that "the denomination applied by our appellate courts, in decisions on the point, appears uniformly to depend upon the nature of the question presented; that is, the proceedings are to be thought of as Quasi -criminal for some purposes and Quasi -civil for others." (at 341, 233 A.2d at 68)

As that opinion also stated, "So, there is nothing to be gained by attempts at classification."

Neither can I agree that defendant is charged with the commission of a tortious injury. What is the tort? And upon whom was it committed?

It appears that a bastardy proceeding cannot be designated as either civil or criminal, or tortious, contractual or Quasi -contractual. It is obviously a special statutory proceeding designed to determine the paternity of an illegitimate child and to provide for the support of the child. To attempt to categorize it further would not serve any useful purpose and could only lead to confusion.

The annotations collected and appearing in 59 A.L.R. 685 Et seq. deal extensively with the subject and seem to indicate that in most instances a...