Ingram v. State ex rel. McIntosh

• Decision Date: 25 April 1888
• Citation: 37 N.W. 943,24 Neb. 33
• Parties: INGRAM v. STATE EX REL. MCINTOSH.
• Court: Nebraska Supreme Court

24 Neb. 33

37 N.W. 943

INGRAM

v.STATE EX REL. MCINTOSH.

Supreme Court of Nebraska.

April 25, 1888.

Syllabus by the Court.

The county judge has jurisdiction to hear proceedings instituted under chapter 37, Comp. St., entitled “Illegitimate Children.”

Where an unmarried woman resided in the county of C., and while so residing in the said county became pregnant, but prior to her confinement, and for that purpose, she was removed to the Home of the Friendless in the county of L., and the child was there born, upon her return to the county of C., it was held that a prosecution in bastardy could be maintained in said county, there being no proof that she had permanently abandoned the county of C. as her residence.

Ordinarily the decision of a trial court in favor of a plaintiff in error cannot be assigned as error upon which to base a reversal of a judgment. Hence, in the proceedings in bastardy, where the attorney conducting the prosecution instructed the prosecutrix to turn the face of the illegitimate child so that the jury could observe it, which, upon objection being made thereto, was held by the court to be improper, no error could be assigned.

In proceedings in bastardy, where the defendant, although present in court, did not take the witness stand as a witness in his own behalf, and deny the charge made by the prosecutrix, it was held competent for the attorney for the prosecutrix, in arguing the case to the jury, to refer to such want of denial on the part of the accused.

Evidence examined, and held to support the verdict of the jury.

Error to district court, Cass county; POUND, Judge.

Crites & Ramsey, for plaintiff in error.

REESE, C. J.

This was a proceeding in bastardy instituted in the county court of Cass county to compel the plaintiff in error to maintain the illegitimate child of one Callie McIntosh. A trial in the district court resulted in a verdict of guilty, and the usual decree for support. The first question presented for decision is as to the jurisdiction of the county judge in cases of this kind. Chapter 37, Comp. St., provides, in substance, that on complaint being made to a justice of the peace, accusing, on oath or affirmation, any person of being the father of a bastard child, the justice of the peace shall take the accusation in writing, and thereupon issue his warrant for the arrest of the person charged; that, upon an examination into the question presented, the plaintiff shall be examined under oath, in presence of the accused, respecting the cause of her complaint, and such accused person shall be allowed to ask the plaintiff, when under oath, such questions as he may think necessary for his justification. If, on such examination, the party accused be found guilty, he shall pay, or secure to be paid, to the plaintiff such sums of money or property as she may agree to receive in full satisfaction, and shall further give bonds to the county commissioners of the county in which the plaintiff shall reside, and their successors in office, to secure the maintenance of the child. Then the accused shall be discharged upon payment of costs. It is required that the agreement shall be acknowledged by both parties in the presence of the justice. It is well settled in this state that a proceeding, of the character referred to, is a civil action, and that it should be conducted in the name of the prosecutrix. Cottrell v. State, 9 Neb. 125, 1 N. W. Rep. 1008;Jones v. State, 14 Neb. 210, 14 N. W. Rep. 901;Kremling v. Lallman, 16 Neb. 280, 20 N. W. Rep. 383;Altschuler v. Algaza, 16 Neb. 631, 21 N. W. Rep. 401.

Section 2, c. 20, Comp. St. 1887, provides that county judges in their respective jurisdictions shall have and exercise the ordinary powers and jurisdiction of a justice of the peace, and shall, in civil cases, have concurrent jurisdiction with the district court in all cases in any sum not exceeding $1,000, etc.: “provided, that county courts shall not have jurisdiction-- First, in any action for malicious prosecution; second, in any action against officers for misconduct in office, except where like proceedings can be had before a justice of the peace; third, in actions for slander and libel; fourth, in actions upon contracts for the sale of real estate; fifth, in any matter wherein the title or boundaries to land may be in dispute, nor to order or decree the sale or partition of real estate.” This provision is substantially the same as section 907, Civil Code, limiting the jurisdiction of justices of the peace. It is insisted that proceeding to recognize the putative father of a bastard child is not one of the ordinary powers and jurisdiction of a justice of the peace, and therefore the county court can have no jurisdiction in such cases. Were it the law that what is termed the ordinary powers and jurisdictions of a justice of the peace are confined to the jurisdiction given by sections 905 and 906, Civil Code, it is quite probable that the contention of plaintiff in error would be correct. But we do not so understand the meaning of the term. The powers and jurisdiction of a justice of the peace are such as is given by statute, and the fact that it is provided in the chapter on illegitimate children that the complaint may be made to a justice of the peace does not, in our opinion, make it any the less one of the ordinary powers of that officer than though it appeared in the sections of the Civil Code above referred to. In Blaco v. Haller, 9 Neb. 149, 1 N. W. Rep. 978, it was held that the action for forcible entry and detention, or the detention only, of real property, was within the ordinary powers of the justice of the peace. It is true that this holding seems to be based somewhat upon the fact that the provision of the statute conferring this jurisdiction was in the act concerning the general jurisdiction of a justice of the peace; but that, to our mind, can make no...