Hodge v. Sawyer

• Decision Date: 27 January 1893
• Citation: 27 A. 153,85 Me. 285
• Parties: HODGE v. SAWYER.
• Court: Maine Supreme Court

27 A. 153

85 Me. 285

HODGE

v. SAWYER.

Supreme Judicial Court of Maine.

Jan. 27, 1893.

(Official.)

Exceptions from superior court, Cumberland county.

Action in bastardy by Hattie L. Hodge against Herbert T. Sawyer.Plaintiff had judgment, and defendant brings exceptions.Exceptions overruled.

The first exception is based on overruling the defendant's motion to dismiss the proceedings because the complainant's name was left out of the certificate of the oath of the complaint, although it appeared immediately before in the complaint, of which the oath is a part The next exception was to the refusal of the presiding justice to instruct the jury that upon the testimony given at the trial the action could not be maintained.The defendant's contention herein was that the complainant was never a resident of the state, and had no right, under the statute, to prosecute a bastardy complaint.

Clarence Hale, for complainant.

Frank & Larrabee, for defendant.

HASKELL, J. Bastardy complaint.The child was begotten in Cumberland county, in this state, where the defendant was resident and the complainant commorant.Before the child was born, the complainant, a minor, returned to her father's house, in New Hampshire, and was there delivered.Afterwards she came to Portland for the purpose and made this complaint, but has had no residence in this state since the child was born.The complaint alleges her residence to be in Cumberland county.

After motion to dismiss the complaint for causes that will be considered later, the case went to trial on the merits, presumably upon a plea of not guilty, although the record does not state that fact.

At the conclusion of the evidence the defendant requested the court to rule that "the action could not be maintained."

This is a civil action, (Mahoney v. Crowley, 36 Me. 486;Smith v. Lint, 37 Me. 546;Knowles v. Scribner, 57 Me. 495,) criminal in form, but not local, (Dennett v. Kneeland, 6 Greenl.460.)It is to be brought in the county where the complainant resides.Rev. St. c. 97, § 3.The complaint shows jurisdiction of the court.

It is settled law that a plea to the merits, in a civil transitory action, waives all matters of abatement Webb v. Goddard, 46 Me. 505;Demuth v. Cutler, 50 Me. 298;Brown v. Webber, 6 Cush. 560;Thornton v. Leavltt, 63 Me. 384.

In applying this rule a distinction must be made between cases over the subject-matter of which the court has no jurisdiction and cases of wrong venue or defective process.A prerequisite to a valid judgment is jurisdicticon of the subject-matter and of the persons of the parties, so that the "person and case may be rightly understood."

In the case at barthe complainant came within the jurisdiction of the court, and attached the defendant, who voluntarily submitted the cause to the jury on its merits.The court had jurisdiction of the subject-matter, and the parties went to trial.It is too late to object to the residence of the plaintiff, and, if it were not, the plaintiff's residence seems sufficient.Alley...