Multnomah County v. Faling

• Decision Date: 23 July 1907
• Citation: 91 P. 21,49 Or. 603
• Parties: MULTNOMAH COUNTY v. FALLING.
• Court: Oregon Supreme Court

91 P. 21

49 Or. 603

MULTNOMAH COUNTY v. FALLING.

Supreme Court of Oregon

July 23, 1907

Appeal from Circuit Court, Multnomah County; Arthur L. Frazer Judge.

Action by the county of Multnomah against X.J. Faling. From a judgment overruling a demurrer to the complaint, defendant appeals. Reversed and remanded, with directions to sustain the demurrer.

Thos N. Strong, for appellant.

Ernest Brand, Jr., for respondent.

BEAN C.J.

This is an action brought by the county court of Multnomah county against Xarifa J. Faling to compel her to pay to the county $30 per month for the support of her brother, Cornelius W. Barrett, an alleged poor person, and comes here on appeal from a judgment rendered in favor of plaintiff after overruling a demurrer to the complaint.

Section 2654, B. & C. Comp., provides that: "Every poor person who shall be unable to earn a livelihood in consequence of bodily infirmity, *** shall be supported by the father mother, children, brothers, or sisters of such poor person, if they or either of them be of sufficient ability; and every person who shall fail or refuse to support his or her father, mother, child, sister or brother, when directed by the county court, *** shall forfeit and pay to the county, for the use of the poor of their county, the sum of thirty dollars per month, or such other sums as the court shall find sufficient, to be recovered in the name of the county court for the use of the poor as aforesaid before any justice of the peace or any court having jurisdiction." There is no averment in the complaint that the defendant has been directed by the county court to support her brother, and that she has failed or refused to comply therewith, and this is an essential prerequisite to the maintenance of the action. At common law there is no legal liability resting on one relative to support another, however strong the moral duty may be. The duty of providing such support is purely statutory, and the procedure provided for its enforcement is exclusive. Belknap v. Whitmire, 43 Or. 75, 72 P. 589. Under this statute the county court has no cause of action against a delinquent relative except upon his failure to perform the duty imposed upon him by statute "when directed by the county court." The provision is that every person who shall refuse to support his or her parents, children, brother, or sister, "when directed by the county court," shall forfeit and pay to the...