Myers v. Anderson

• Citation: 67 P.2d 542,145 Kan. 775
• Decision Date: 08 May 1937
• Docket Number: 33176.
• Parties: MYERS v. ANDERSON.
• Court: United States State Supreme Court of Kansas

67 P.2d 542

145 Kan. 775

MYERS v. ANDERSON.

No. 33176.

Supreme Court of Kansas

May 8, 1937

Syllabus by the Court.

Statutes relating to illegitimate children and children in destitute or necessitous circumstances do not fully cover entire field of parental liability for support of children, and father of illegitimate child, which is too young to care for himself is under a non-statutory obligation to support child "which obligation" may be enforced in action brought by child through his next friend (Gen.St.1935 62-2301 et seq.).

In absence of statutory authorization or proper procedure in court, mother held not authorized to compromise or settle illegitimate child's cause of action for support against father, since right of child to support from father was chose in action which belonged to child (Gen.St.1935, 62-2316).

1. Following Doughty v. Engler, 112 Kan. 583, 211 P 619, 30 A.L.R. 1065, it is held that "The father of an illegitimate child too young to care for itself is under a non-statutory obligation to support it, which may be enforced in an action brought by it through its next friend."

2. The right of the child to support from its father is a chose in action which belongs to the child.

3. In the absence of statute providing therefor, or proper procedure in court, a parent has no implied or other authority to compromise or settle his child's cause of action.

Appeal from District Court, Clay County; Edgar C. Bennett, Judge.

Action by Janet Louise Myers, by Phyllis Myers, her mother and next friend, against Clayton P. Anderson. Judgment for defendant, and plaintiff appeals.

Reversed.

W. T. Roche and C. Vincent Jones, both of Clay Center, for appellant.

W. M. Beall, of Clay Center, and Hal E. Harlan and A. M. Johnston, both of Manhattan, for appellee.

THIELE Justice.

The question in this appeal is whether an illegitimate child's right to support from its father is barred by reason of a settlement made between the father and its mother.

Plaintiff's petition alleged her birth on February 28, 1935; that Phyllis Myers was her mother and defendant was her father; that she was in destitute and necessitous circumstances, her mother was financially unable to support her, and defendant, upon demand, refused to contribute to her support. She prayed for such relief as was just and equitable in the premises and for an order compelling defendant to support her, etc.

Defendant's answer consisted of a general denial, admitted plaintiff's birth and that Phyllis Myers was her mother, and alleged that Phyllis Myers and defendant were never married to each other. For a further defense, defendant alleged that on December 6, 1934, Phyllis Myers claimed defendant was the father of her unborn child, and in order to settle the matter without publicity and litigation, defendant paid to Phyllis Myers the sum of $1,000, in consideration of which Phyllis Myers, in writing, released defendant from any and all liability to her or to said child after it should be born. For a further defense, defendant alleged that if the written release did not constitute a complete defense, that the sum of $1,000 paid was sufficient and adequate to provide for the care, support, maintenance, and education of the child. We note that in the written release is an express statement defendant does not acknowledge paternity of the child

The amended reply stated the $1,000 was exhausted and expended by the mother prior to plaintiff's birth.

Trial was had by the court which found that defendant was the father of plaintiff, and that the agreement between the plaintiff's mother and the defendant was a bar to plaintiff's action, and that plaintiff was in necessitous circumstances. Plaintiff's motion for a new trial was denied and she appeals.

Before discussing the merits of the appeal, we note appellee's motion to dismiss the appeal because no transcript of the evidence was obtained and filed. The appellant is not disputing any finding of fact made by the trial court and the need for such a transcript is not apparent. Appellee argues that in the absence of any showing to the contrary it should be presumed the release between plaintiff's mother and the defendant was fairly and understandingly made and that no deceit or fraud was practiced upon the mother. Appellant makes no claim to the contrary, and such presumption will be made.

The question presented may be divided into two parts. The first is whether the father of an illegitimate child has a duty to support it, and the second, whether the mother can by agreement, make a settlement which will bind the child. It may be observed that in this case no proceedings were had under G.S.1935, 62-2301 et seq. pertaining to illegitimate children. In so far as the first part of the question is concerned, the matter is settled in this state by Doughty v. Engler, 112 Kan. 583, 211 P. 619, 30 A.L.R. 1065, in which this court, after stating the rule of...