Jones v. State ex rel. Gibson

• Decision Date: 02 February 1883
• Citation: 14 N.W. 901,14 Neb. 210
• Parties: JONES v. STATE OF NEBRASKA EX REL. GIBSON.
• Court: Nebraska Supreme Court

14 Neb. 210

14 N.W. 901

JONES

v.STATE OF NEBRASKA EX REL. GIBSON.

Supreme Court of Nebraska.

Filed February 2, 1883.

Error from Clay county.

Laird & Smith and John D. Hayes, for plaintiff.

The Attorney General, for defendant.

BY THE COURT.

In the year 1877 the plaintiff was arrested under the bastardy act, and was bound over to appear at the next term of the district court. The case was continued for some time at his request, but in November, 1878, a trial was had which resulted in a verdict of not guilty. A motion for a new trial was filed on behalf of the state, which was taken under advisement until the next term of the court. At the next term the motion was overruled and judgment entered on the verdict, and that the plaintiff pay his own costs.

The error assigned is that the court erred in rendering judgment against the plaintiff in error for costs. Proceedings under the bastardy act are in the nature of a civil action to enforce the performance of a civil and moral obligation--the support by a father of his child. Cottrell v. State, 9 Neb. 125; [S. C. 1 N. W. REP. 1008.] It is not necessary to bring the action in the name of the state, but may be instituted in the name of the prosecuting witness.

Section 620 of the Code provides that a plaintiff shall be allowed his costs of course, in actions for the recovery of money only, or for specific real or personal property. Section 621 provides in what cases a plaintiff shall not recover costs, if the damages assessed be under five dollars. Section 622, that costs shall be allowed to defendant of course, on any judgment in his favor in any of the causes mentioned in sections 620 and 621. Section 623 provides that in other actions the court may award and tax costs, and apportion the same between the parties on the same or adverse sides, as it in its discretion may think right and equitable.

This proceeding being in the nature of a civil action, and the court having authority to apportion the costs, the judgment is affirmed.