Johnson v. Barnes

Decision Date22 October 1886
PartiesJOHNSON v. BARNES.
CourtIowa Supreme Court

OPINION TEXT STARTS HERE

Appeal from Boone circuit court.

Action at law. A demurrer to the petition was sustained, and the plaintiff appeals.Cole, McVey & Clark, for appellant.

E. E. Webb, for appellee.

SEEVERS, J.

The petition states that in 1867 the plaintiff and defendant were living together as husband and wife, and that they had one child born in 1865; that in 1867 the defendant, without cause, abandoned the plaintiff and their said child, left them without any means of support, and concealed his place of residence from the plaintiff, who thereafter, until 1883, supported, clothed, and educated said child, which was reasonably worth $200 per year, and that during said period the plaintiff supported herself by her own labor, and that the defendant was abundantly able to support, or contribute to the support, of his child; that prior to the commencement of this action the plaintiff procured a divorce from her said husband, and by reason of the defendant's failure to support said child the plaintiff asks judgment for $3,000. The defendant demurred to the petition on the ground, among others, that a right to recover did not exist. It will be observed that it does not distinctly appear that the marital relations existed between the parties at the time the plaintiff clothed and supported the child, but we think this, under the averments of the petition, must be assumed. As there was no promise, the question to be determined is whether one can be inferred in favor of a wife who supports her child, as against her husband who has without cause abandoned her and his child. The obligation of parents to support their children at common law is somewhat uncertain, ill defined, and doubtful. Indeed, it has been said that there is no such obligation. Mortimore v. Wright, 6 Mees. & W. 488. But we are not prepared to say that this rule has been adopted in this country, and it should be conceded, we think, that, independent of any statute, parents are bound to contribute to the support of their minor children, and that such obligation rests mainly on the father, in the absence of a statute, if of sufficient ability; and that, in favor of a third person who supports the child, a promise to pay may and should be inferred on the ground of the legal duty imposed.

Counsel for the appellant have cited several authorities in which, as we understand, this doctrine is announced. 2 Kent, Comm. 192, 193; Schouler, Dom. Rel. §§ 236, 237; Reynolds v. Sweetser, 15 Gray, 78;Cowles v. Cowles, 3 Gilman, 435;Bazeley v. Forder, L. R. 3 Q. B. 559; Tomkins v. Tomkins, 11 N. J. Eq. 512. But in none of these cases was such a promise inferred in favor of a wife, except that in one or more of them a father was compelled to contribute to the support of his child in an action brought by the mother in equity in aid of, or growing out of, an action for a divorce. Stanton v. Willson, 3 Day, 37, possibly goes one step further. In that case there had been a divorce by the general assembly, and the wife was constituted sole guardian of two of the children, and the husband ordered to pay her a certain sum of money in lieu of dower, which was paid. Afterwards an action was brought by the divorced wife against her husband to recover for the support of the children, furnished by her, and it was held she could do so.

There is a clear distinction between this...

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2 cases
  • Johnson v. Barnes
    • United States
    • Iowa Supreme Court
    • 22 Octubre 1886
  • Lapworth v. Leach
    • United States
    • Michigan Supreme Court
    • 28 Diciembre 1889
    ... ... The father is primarily liable for the support ... and maintenance of his infant children, (Stanton v ... Willson, 3 Day, 37; Johnson v. Barnes, 29 N.W ... 759; Reynolds v. Sweetser, ... [44 N.W. 341.] ... 15 Gray, 78;) and there is no doubt, I apprehend, in so doing ... he ... ...

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