Myuskovich v. State ex rel. Osborn

• Decision Date: 28 September 1943
• Docket Number: 2260
• Citation: 59 Wyo. 406,141 P.2d 540
• Parties: MILLARD MYUSKOVICH, Plaintiff in Error, v. STATE OF WYOMING, EX REL., ELEANORA OSBORN, Defendant in Error
• Court: Wyoming Supreme Court

141 P.2d 540

59 Wyo. 406

MILLARD MYUSKOVICH, Plaintiff in Error, v. STATE OF WYOMING, EX REL., ELEANORA OSBORN, Defendant in Error

No. 2260

Supreme Court of Wyoming

September 28, 1943

Error to District Court, Washakie County; P. W. Metz, Judge.

Proceeding by the State of Wyoming, on the relation of Eleanora Osborn against Millard Myuskovich to compel defendant to support a child born to relatrix out of wedlock. To review a judgment entered upon a verdict finding defendant to be the father of the child and directing defendant to pay a stipulated sum annually for its support until child should reach the age of sixteen years, defendant brings error.

Judgment affirmed.

Affirmed.

For the plaintiff and defendant in error, there was a brief by C. H Harkins, D. J. Harkins, and C. R. Harkins, of Worland Wyoming, and oral argument by D. J. Harkins and C. R. Harkins.

POINTS OF COUNSEL FOR PLAINTIFF IN ERROR

The Uniform Illegitimacy Act provides that actions shall be conducted as in other civil cases. Three things are necessary to give the District Court jurisdiction: 1. The filing of a complaint; 2. Such complaint must have alleged jurisdictional facts; and 3. The complaint must state facts sufficient to constitute a cause of action. Proceedings to provide for the maintenance and support of bastard children are in the nature of civil proceedings: 7 C. J., p. 966, Sec. 57. It was incumbent upon the complainant to follow the rules of civil procedure. 89-1004, W. R. S. 1931. It is elementary that the complaint in a bastard proceeding must state a cause of action: Bancroft's Code Pleading, 10 year Supplement, Vol. 3, Sec. 3178; Cummins v. The State, 148 P. 137 (Okla.); Anderson v. The State, 140 P. 1142 (Okla.). The complaint should aver all the facts necessary to sustain the proceeding: 5 Cyc. 657-8; 7 Am. Jur. 694, Sec. 104; 10 C. J. 165, Sec. 77; 7 C. J. 967, Sec. 57. The complaint must allege that the mother is a resident of the county: Jones v. State, 4 P. 2d 85; Cummins v. State, 148 P. 137; Burnham v. State et al., 266 P. 781; Clark v. State, 289 P. 315; Wilson v. State, 175 P. 829; Tiger v. State, 19 P. 2d 568. Jurisdiction is the power to hear and determine the subject- matter of the controversy: Myers v. Berry, 41 P. 580 (Okla.).

For the defendant and plaintiff in error, there was a brief by Noel Morgan of Worland, Wyoming, and Lin I. Noble of Thermopolis, Wyoming, and oral argument by Lin I. Noble.

POINTS OF COUNSEL FOR DEFENDANT IN ERROR

The Uniform Illegitimacy Law is a statute separate from the civil or criminal codes of procedure: Art. 4, Chapter 20, W. R. S. 1931. The complaint is not required to be returned by the Statute: Volume 4, Standard Encyclopedia of Procedure, p. 68; Hutchinson v. State, 27 N.W. 113; 7 C. J. 987; 3 R. C. L. 46. Plaintiff cannot fairly contend that he has been misled: Claughton v. Johnson, 47 Wyo. 536. Section 20-433 relates entirely to venue not jurisdiction: Caceres v. U. S. Shipping Board Emergency Fleet Corporation. 299 F. 969; Panama R. Co. v. Johnson, 1924, U. S. Supreme Court, 44 Supreme Court Reports, p. 391. Where the venue of an action is dependent upon the residence of one of the parties it is not necessary to allege the residence of either of the parties: Boswell v. Bank, 16 Wyo. 161, particularly page 191, paragraph numbered 5; Bohart v. Republic Investment Company, 30 P. 180; Farnsworth v. Union Pacific Coal Co., 89 P. 74; Paige et al. v. Sinclair, 130 N.E. 177. If the defendant had any objection to the Jurisdiction of the Court he waived it: 67 C. J., p. 127, Secs. 207 and 208; also p. 131, Sec. 214. Wyoming statute was apparently enacted to give mother of illegitimate child a right of action regardless of her residence: 7 American Jurisprudence, pages 683, 684 and 685; State v. Etter, 140 American State Reports, p. 801; Roy v. Poulin, 134 American State Reports, p. 573; Kinder v. State ex rel. Dunbar, 70 Ind. 284; State v. Carroll, 101 N.W. 317. As to the proposition that the complaint does not in terms allege that the child was born out of wedlock. It does allege, however, that the complainant is an unmarried woman. This is sufficient: In re Marshall's Estate, 252 N.Y.S. 683, 141 Misc. 457; Douglass v. Board of Foreign Missions of Presbyterian Church in U. S. of America, 160 A. 37, 39, 110 N. J. Eq. 331; Robie v. McNiece, 7 Vt. 419; Gallary v. Holland, 15 Gray (Mass.) 50. The amount of the award is in the discretion of the trial court: 10 C. J. S. 193. The law is not unconstitutional: 7 Am. Jur. 710, Sec. 133.

BLUME, Justice. KIMBALL, Ch. J., and RINER, J., concur.

OPINION

BLUME, Justice.

This is a proceeding under the statute relating to illegitimacy. Eleanora Osborn, hereinafter mentioned as plaintiff, filed a complaint against Millard Myuskovich, hereinafter named as defendant, charging that she was an unmarried woman pregnant with child begotten by the defendant during the month of February, 1940; that the defendant is the father of the child. She asked that the defendant be brought before the court to answer the charge and that a warrant issue for his apprehension. This complaint was filed on June 22, 1940. Later, it was dismissed without prejudice. On December 18, 1941, the plaintiff filed another information against the defendant in the Justice Court of Washakie County of this State which, in the main part of the complaint, stated as follows: "Eleanora Osborn being first duly sworn on oath deposes and says: that she is an unmarried woman; that she is the mother of a child, Duane Stuart Osborn, begotten by the above named defendant, Millard Myuskovich; that said child was born at Worland, Wyoming on October 6, 1940, and said Millard Myuskovich is the father of said child. Wherefore, she asks that said Millard Myuskovich be brought before said court to answer said charge and that a warrant issue for the apprehension of said defendant." The defendant was apprehended. A trial was had before a Justice of the Peace who committed him to appear in the District Court of Washakie County and who made a return of the papers in the case, including the complaint, to the District Court on January 7, 1942. On March 24, 1942, the defendant, by his attorney, filed a motion for continuance alleging that the case is one to determine the parentage of the child of plaintiff; that the defendant is charged with being the father of said child; and that defendant expects to show by witnesses who are absent that he is not the father; that the witnesses are in the United States Army and that it would be necessary to take their depositions. The record fails to show any order of the Court granting the motion for continuance, but it was evidently granted, for the trial of this case did not take place until May 11, 1942. In the District Court the case was tried to a jury who, on May 13, 1942, returned a verdict that the defendant is the father of Duane Stuart Osborn as charged in the complaint in the case. The evidence shows that at the time of the trial the plaintiff was about 20 years old, the defendant about 29; that the plaintiff and the defendant were then and had been during their life, or for many years, residents of Washakie County, Wyoming; and that plaintiff had never been married. Judgment was entered upon the verdict, directing that the defendant should pay to plaintiff the sum of $ 300. per annum till the child should become sixteen years of age, but only the sum of $ 200. per annum, if the defendant should be inducted into the Army. It also directed the payment by defendant of the expenses of the pregnancy and confinement of the plaintiff. A motion for a new trial, and an amended motion were filed. The Court did not act upon these motions, and they were, accordingly, under the provisions of chapter 112, Rev. St. 1931, deemed overruled as of July 13, 1942. The defendant has brought the case here by petition in error. No question is raised in this court as to the sufficiency of the evidence to sustain the verdict, but a number of contentions are made to reverse the judgment, which we shall proceed to consider.

I. Toward the beginning of the trial, counsel for the defendant interposed the following objection: "Comes now the defendant, Millard Myuskovich, and objects to the introduction of any further evidence by the plaintiff for the reason that no sufficient petition, complaint, information or indictment is on file herein on which to base or maintain this, or any other action, under the Uniform Illegitimacy Law; that the defendant is not charged with having had intercourse with the plaintiff at any time within which, and as a result of which, the child of which the defendant is charged to be the father could have been conceived; that the files disclose that there are not sufficient facts alleged in any complaint, petition, information, or indictment on file herein to sustain a verdict of the jury, and a judgment of the court. Wherefore, defendant prays that judgment be entered for the defendant, and that he be discharged from further custody." It is contended at this time that the complaint filed in this case is wholly insufficient to confer jurisdiction upon the Court to try this case. Reliance is placed upon the provisions of section 20-433, Rev. St. 1931, reading as follows:

"Jurisdiction over proceedings to compel support is vested in the district court of the county in which the alleged father is permanently or temporarily resident, or in which the mother or the child resides or is found. It is not a bar to the jurisdiction of the court, that the complaining mother or child resides in another state."

Counsel claim that this section requires the complaint to show either that the defendant or the plaintiff was a resident of Washakie County. It is stated in 49 C. J. 142...