Neill v. Ridner, No. 372A155

Docket NºNo. 372A155
Citation286 N.E.2d 427, 153 Ind.App. 149
Case DateAugust 23, 1972

Page 427

286 N.E.2d 427
153 Ind.App. 149
Manford NEILL, Appellant-Defendant,
v.
Betty RIDNER, Appellee-Plaintiff.
No. 372A155.
Court of Appeals of Indiana, First District.
Aug. 23, 1972.

[153 Ind.App. 150]

Page 428

Ronald D. Hughes, Bloomington, William M. Osborn, Grace M. Curry, Bingham, Summers, Welsh & Spilman, Indianapolis, for appellant-defendant.

Stephen Ferguson, Bloomington, for appellee-plaintiff.

ROBERTSON, Presiding Judge.

The primary issues raised in this appeal concern the sufficiency, if any, of service of process upon a non-resident defendant in a bastardy case, and whether he was denied due process of law.

The procedural facts reveal the plaintiff-appellee commenced her cause against the defendant-appellant on the 23rd day of July, 1969, under the Children Born Out of Wedlock Act, IC 1971 31--4--1--1, et seq., Ind.Ann.Stat. § 3--623 et seq. (Burns 1968). The summons was returned by the Sheriff of Monroe County, Indiana as unfound, and with the explanation that the defendant 'lives in Ky.'. Defendant's counsel entered a special appearance on September 11th for the purpose of contesting jurisdiction over the defendant. On November 19th, and December 19th, 1969, bench warrants were issued [153 Ind.App. 151] for the arrest of the defendant. Neither of these were successful in securing the defendant's presence in court, nor were they recalled until after the trial.

On April 10th, 1970, an alias summons was issued by mail. The return receipt was signed by a Roger Goodman. In August, 1970, the summons was set aside as not being properly served. Still another alias summons was ordered issued. On November 25, 1970, the defendant was personally served by a deputy sheriff of Fayette County, Kentucky, who made his return. Defendant's counsel contested jurisdiction at virtually every stage of the proceedings.

A trial by the court resulted in a verdict declaring the defendant to be the father of the twin boys born to the plaintiff, and an order for their support was made. The defendant did not attend the trial.

The first of several contentions is based upon TR 4.4(A), IC 1971, 34--5--1--1 which reads:

'(A) Acts serving as a basis for jurisdiction. Any person or organization that is a nonresident of this state, a resident of this state who has left the state, or a person whose residence is unknown, submits to the jurisdiction of the courts of this state as to any action arising from the following acts committed by him or his agent:

(1) doing any business in this state;

(2) causing personal injury or property damage by an act or omission done within this state;

(3) causing personal injury or property damage in this state by an occurrence, act or omission done outside this state if he regularly does or solicits business or engages in any other persistent course of conduct, or derives substantial revenue or benefit from goods, materials, or services used, consumed, or rendered in this state;

(4) having supplied or contracted to supply services rendered or to be rendered

Page 429

or goods or materials furnished or to be furnished in this state;

(5) owning, using or possessing any real property or an interest in real property within this state, or

(6) contracting to insure or act as surety for or on behalf of any person, property or risk located within this state at the time the contract was made;

[153 Ind.App. 152] (7) living in the marital relationship within the state notwithstanding subsequent departure from the state, as to all obligations for alimony, custody, child support, or property settlement, if the other party to the marital relationship continues to reside in the state.' 1

The essence of defendant's assignment of error, as it pertains to TR 4.4(A), is that the act or acts which give rise to an action of bastardy are not specified in any of the seven determinates giving jurisdiction over a non-resident.

We are of the opinion that TR 4.4(A)(2) applies in the situation at hand. There is no requirement that the act complained of be a tort as it was known at the common law. The legislature, by means of the Children Born Out of Wedlock Act, supra, makes it quite clear that it is the policy of Indiana to protect children under these circumstances.

The law, prior to the adoption of the new rules on January 1, 1970, was clear that constructive notice or extraterritorial service to the defendant in a bastardy case would not uphold a judgment fixing support for the child. See: Beckett v. State ex rel. Rothert (1892), 4 Ind.App. 136, 30 N.E. 536, and Beckett v. State ex rel. Rothert (1894), 10 Ind.App. 408, 37 N.E. 30. Applied to the facts of the case at hand it is apparent that the trial court had never acquired jurisdiction over the defendant as of January 1, 1970.

The defendant cites us to...

To continue reading

Request your trial
29 practice notes
  • Jones v. Chandler, No. 90-CA-0555
    • United States
    • United States State Supreme Court of Mississippi
    • December 18, 1991
    ...over non-resident putative fathers, see, e.g., Poindexter v. Willis, 87 Ill.App.2d 213, 217-18, 231 N.E.2d 1, 3 (1967); Neill v. Ridner, 153 Ind.App. 149, 286 N.E.2d 427, 429 (1972); Black v. Rasile, 113 Mich.App. 601, 318 N.W.2d 475 (1980); State Ex Rel. Nelson v. Nelson, 298 Minn. 438, 21......
  • Schilz v. Superior Court In and For Maricopa County, No. 17528-SA
    • United States
    • Supreme Court of Arizona
    • February 7, 1985
    ...took place in state, and this was not denied by defendant, latter was amenable to service of process outside of state); Neill v. Ridner, 153 Ind.App. 149, 286 N.E.2d 427 (1972) (alleged act in Indiana giving rise to bastardy action met "minimum contact" requirement and subjected nonresident......
  • Larsen v. Scholl, No. 63979
    • United States
    • United States State Supreme Court of Iowa
    • September 17, 1980
    ...the concomitant duty of support. See, e. g., Poindexter v. Willis, 87 Ill.App.2d 213, 217-18, 231 N.E.2d 1, 3 (1967); Neill v. Ridner, 153 Ind.App. 149, 152, 286 N.E.2d 427, 429 (1972); Howells v. McKibben, 281 N.W.2d at 156-57; State ex rel. Nelson v. Nelson, 298 Minn. 438, 439-42, 216 N.W......
  • Barker v. Barker, No. 12394
    • United States
    • New Mexico Supreme Court of New Mexico
    • March 3, 1980
    ...Amendment to the United States Constitution, when "minimum contact" and "adequate notice" are present. In the case of Neill v. Ridner, 153 Ind.App. 149, 286 N.E.2d 427 (1972), a bastardy proceeding, extra-territorial service upon the putative father, based upon the act or acts in Indiana wh......
  • Request a trial to view additional results
29 cases
  • Jones v. Chandler, No. 90-CA-0555
    • United States
    • United States State Supreme Court of Mississippi
    • December 18, 1991
    ...over non-resident putative fathers, see, e.g., Poindexter v. Willis, 87 Ill.App.2d 213, 217-18, 231 N.E.2d 1, 3 (1967); Neill v. Ridner, 153 Ind.App. 149, 286 N.E.2d 427, 429 (1972); Black v. Rasile, 113 Mich.App. 601, 318 N.W.2d 475 (1980); State Ex Rel. Nelson v. Nelson, 298 Minn. 438, 21......
  • Schilz v. Superior Court In and For Maricopa County, No. 17528-SA
    • United States
    • Supreme Court of Arizona
    • February 7, 1985
    ...took place in state, and this was not denied by defendant, latter was amenable to service of process outside of state); Neill v. Ridner, 153 Ind.App. 149, 286 N.E.2d 427 (1972) (alleged act in Indiana giving rise to bastardy action met "minimum contact" requirement and subjected nonresident......
  • Larsen v. Scholl, No. 63979
    • United States
    • United States State Supreme Court of Iowa
    • September 17, 1980
    ...the concomitant duty of support. See, e. g., Poindexter v. Willis, 87 Ill.App.2d 213, 217-18, 231 N.E.2d 1, 3 (1967); Neill v. Ridner, 153 Ind.App. 149, 152, 286 N.E.2d 427, 429 (1972); Howells v. McKibben, 281 N.W.2d at 156-57; State ex rel. Nelson v. Nelson, 298 Minn. 438, 439-42, 216 N.W......
  • Barker v. Barker, No. 12394
    • United States
    • New Mexico Supreme Court of New Mexico
    • March 3, 1980
    ...Amendment to the United States Constitution, when "minimum contact" and "adequate notice" are present. In the case of Neill v. Ridner, 153 Ind.App. 149, 286 N.E.2d 427 (1972), a bastardy proceeding, extra-territorial service upon the putative father, based upon the act or acts in Indiana wh......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT