Johns v. Johns

• Decision Date: 14 October 1964
• Docket Number: No. 14,14
• Citation: 236 Md. 278,203 A.2d 704
• Parties: Franklin D. R. JOHNS v. Joan JOHNS.
• Court: Maryland Court of Appeals

Page 278

236 Md. 278

203 A.2d 704

Franklin D. R. JOHNS v. Joan JOHNS.

No. 14.

Court of Appeals of Maryland.

Oct. 14, 1964.

Ronald A. Willoner, Hyattsville (Keane, DePaul & Willoner, Hyattsville, on the brief), for appellant.

No brief or appearance for appellee.

Before HENDERSON, C. J., and HAMMOND, PRESCOTT, HORNEY and MARBURY, JJ.

HENDERSON, Chief Judge.

On August 15, 1963, a petition for determination of paternity was filed by the appellee, and after some preliminary pleadings and proceedings, including blood tests that proved to be inconclusive and a motion to dismiss, the appellant filed an answer and a motion for summary judgment. Both in the answer and the affidavit to the motion the appellant specifically raised an issue of limitations. Code (1964 Supp.), Art. 16, sec. 66(e) (as enacted by Chapter 722, Acts of 1963), provides that 'Proceedings to establish paternity under the subtitle 'Paternity Proceedings' and to charge the putative father of an illegitimate child or children with their support and maintenance shall be commenced during the pregnancy of the mother thereof or within two (2) years after the birth of such child or children; except that if the putative father of such child or children has acknowledged in writing the paternity of the child or children or has made payment or otherwise provided for the support and maintenance of the child or children, it is sufficient if the proceedings are commenced within two (2) years of the date of such acknowledgment or the last such payment or provision; provided, that the institution of proceedings under the former Article 12 of this Code, title 'Bastardy and Fornication,' prior to June 1, 1963, shall suspend the further running of the period of limitations provided for herein.'

The petition showed on its face that the child, F. D. R. Johns, Jr., was born on March 31, 1959, over four years prior to the institution of these proceedings. The appellant argues that the defense of limitations was properly raised on the motion to dismiss, on the ground that the statute itself imposes a limitation upon the right, and not merely upon the remedy, citing Deckert v. Burns, 75 S.D. 229, 62 N.W.2d 879; People on Complaint of Mendes v. Pennyfeather, 11 Misc.2d 546, 174 N.Y.S.2d 766, and Hernandez v. Anaya, 66 N.M. 1, 340 P.2d 838, construing somewhat similar statutes. Those cases may, perhaps, be distinguishable on the ground that our statutes specifically refers to the time mentioned in the section as a period of limitations. We need not decide the point. Limitations may be raised on demurrer in equity, but the petition alleged acknowledgment and payment within two years. Cf. Hoover v. Williamson, Md., 203 A.2d 861. Although this was denied in the answer and motion for summary judgment, which again asserted the defense of limitations, this raised an issue of fact. The Chancellor was correct in overruling the motion to dismiss and the motion for summary judgment. The appellant moved to dismiss at the conclusion of the plaintiff's case. See Rule 535. Cf. Phillips v. Phillips, 215 Md. 28, 35, 135 A.2d 849, 136 A.2d 862. The only issues before us are whether at the conclusion of the whole case there was evidence to support a finding of an acknowledgment, or a payment or other provision for support and maintenance, within two years prior to the institution of these proceedings.

The testimony of the petitioner was that the appellant never admitted that he was the father of the child, and never paid anything towards its support. The appellant (of the same surname but no relation to the appellee) admitted that he had intercourse with the appellee on May 1, 1958; she fixed the date at June 29, 1958, and testified that he had intercourse with her repeatedly thereafter. He testified that he did not see her after May 1, 1958, until his sister told him the appellee was in the hospital and could not be 'signed out' unless he signed a release. This he did. The paper, offered...