McKenzie v. Lombard
| Decision Date | 26 December 1892 |
| Citation | 85 Me. 224,27 A. 110 |
| Parties | McKENZIE v. LOMBARD. |
| Court | Maine Supreme Court |
(Official.)
Exceptions from superior court, Aroostook county.
Proceedings in bastardy by Amanda McKenzie against William Lombard. Defendant having died before the case was reached for trial, a motion to dismiss was sustained, on the ground that the action did not survive, and from such dismissal complainant brings exceptions. Exceptions overruled.
Frank L. White and Ira G. Hersey, for complainant.
George H. Smith, for respondent.
The question here is whether a bastardy proceeding survives against the personal representatives of a respondent who has died during the pendency of the proceeding in court before a trial has been had. We feel strongly assured that it cannot survive. The proposition finds no favor in the common law, and there is no statutory provision authorizing it The legislature, (Rev. St c. 97, § 11,) in 1879, passed an act allowing a proceeding of the kind to be prosecuted to final judgment by the executors or administrators of a complainant who has deceased before trial of the prosecution. Beyond this exceptional limit no statute or decision that we are aware of has ever gone. No judgment is sought for or is obtainable against property. The process, though held to be a civil proceeding, is criminal in form, and is an extraordinary means to compel a father to assist in the support of his illegitimate child, or suffer imprisonment as a penalty for his neglect to do so. There is no fitness in the proceeding that would adapt itself to the principle of survivorship.
If the pending action survives, then the cause of action would survive as well, and the process could be originally instituted against the administrator of a deceased person who in his lifetime had been guilty under the bastardy statute. The incongruities that would beset such a proceeding are obvious enough. It would be a strange sight to see an administrator arrested, required to give a bond, be put on trial, and perhaps imprisoned, for an act of bastardy committed by the party officially represented by him. Besides, it would be an extremely severe and very questionable policy that would allow a living woman to swear the paternity of her illegitimate offspring upon a dead man. Exceptions overruled.
To continue reading
Request your trial
-
Hayes v. Smith
...on trial, and perhaps imprisoned for an act of bastardy committed by the party officially represented by [her]." McKenzie v. Lombard, 85 Me. 224, 224-25, 27 A. 110 (1892). It is also apparent that because of the privacy surrounding the circumstances giving rise to the charge of paternity, t......
-
Gross v. Vanlerberg
...we have read holding the latter view cite no authority for the assertion that the action abated at common law. See McKenzie v. Lombard, 85 Me. 224, 27 A. 110 (1892), and K.K. v. Estate of M.F., 145 N.J.Super. 250, 367 A.2d 466 (1976). If there was no such action at common law as our cases i......
-
Child Support Enforcement Agency v. Doe, 23053.
...be put on trial, and perhaps imprisoned, for an act of bastardy committed by the party officially represented by him." McKenzie v. Lombard, 85 Me. 224, 27 A. 110 (1892). Similarly, the Connecticut Supreme Court held that a statutory mandate that a putative father be summoned "to appear" to ......
-
Corbett v. Corbett
...the decedent's estates. Carpenter v. Sylvester (Fla.App.) 267 So.2d 370; Myers v. Harrington, 70 Cal.App. 680, 234 P. 412; McKenzie v. Lombard, 85 Me. 224, 27 A. 110; Pryor v. Jump, 183 Okl. 560, 83 P.2d 828; Toms v. Lohrentz, 37 Ill.App.2d 414, 185 N.E.2d 708; K.K. v. M.F., 145 N.J.Super. ......