Minor v. State Dept. of Public Welfare, 56770

• Court: United States State Supreme Court of Mississippi
• Writing for the Court: PRATHER; PATTERSON
• Citation: 486 So.2d 1253
• Parties: James Bernard MINOR v. STATE DEPARTMENT OF PUBLIC WELFARE.
• Docket Number: No. 56770,56770
• Decision Date: 09 April 1986

Page 1253

486 So.2d 1253 James Bernard MINOR
v.
STATE DEPARTMENT OF PUBLIC WELFARE. No. 56770. Supreme Court of Mississippi. April 9, 1986.
Rehearing Denied April 23, 1986.

R.L. Netterville, Natchez, for appellant.

Joe Gentile, Jackson, Richard B. Tubertini, Brookhaven, for appellee.

Before PRATHER, ROBERTSON and SULLIVAN, JJ.

PRATHER, Justice, for the Court:

The defendant in a paternity suit brought by the State Department of Public Welfare moved for a summary judgment

Page 1254

arguing the one year statute of limitations in Miss.Code Ann. Sec. 93-9-9 (Supp.1985) was applicable to the mother as well as the State Department of Public Welfare, the assignee of the mother. From the denial of the summary judgment, the defendant appeals and assigns as error:

(1) If the statute had run as to one party, then the statute had run as to any assignee of that party, as an assignee obtains no greater right than was possessed by the assignor.

(2) Miss.Code Ann. Sec. 93-9-9 (Supp.1985) as written is unconstitutional.

I.

On January 15, 1985, the State Department of Public Welfare filed a complaint and affidavit of paternity against the defendant, James Bernard Minor, alleging that Patricia Ann Mosby was delivered of a child, born out of wedlock on June 13, 1982. The paternity action also alleged that Patricia Ann Mosby, the recipient of public welfare, by the acceptance of public assistance for and on behalf of said child, was deemed to have made an assignment to the State Department of Public Welfare for past, present, and future child support.

The defendant, James Bernard Minor, denied that he was the father of the child and denied that either Patricia Ann Mosby or the State Department of Public Welfare had legal standing to bring this suit against him, because Miss.Code Ann. Sec. 93-9-9 (Supp.1985) provided a one year statute of limitations that was applicable to the mother as well as her assignee, the State Department of Public Welfare.

The defendant requested, and the trial court denied, a summary judgment on the question of the statute of limitations. From the denial of that summary judgment the defendant now brings this appeal.

II.

Motions for summary judgment are governed by the Mississippi Rules of Civil Procedure, Rule 56 which states in part, "A party against whom a claim, counter-claim, or cross-claim is asserted or a declaratory judgment is sought may, at any time, move with or without supporting affidavits for a summary judgment in his favor as to all or any part thereof."

Appellant contends his motion for summary judgment should have been granted because the Department of Public Welfare was, as a matter of law, subject to the one year statute of limitations of Miss.Code Ann. Sec. 93-9-9 (Supp.1985). Following the rationale of the appellant, the right of the Department of Public Welfare to bring the paternity suit is limited to the same extent as the rights of the mother.

A.

The authority of the Department of Public Welfare to institute paternity suits is derived from two sources:

(1) The assigned right of the mother as described in Miss.Code Ann. Sec. 43-19-35 (Supp.1985) and

(2) Miss.Code Ann. Sec. 93-9-9 (Supp.1985).

According to Miss.Code Ann. Sec. 43-19-35 (Supp.1985):

By accepting public assistance for and on behalf of a child or children,...