Nott v. Bender, 30697

• Decision Date: 11 December 1964
• Docket Number: No. 30697,30697
• Citation: 202 N.E.2d 745,246 Ind. 186
• Parties: Thomas W. NOTT, Appellant, v. Eleanor Jean BENDER, Appellee.
• Court: Indiana Supreme Court

Page 745

202 N.E.2d 745

246 Ind. 186

Thomas W. NOTT, Appellant, v. Eleanor Jean BENDER, Appellee.

No. 30697.

Supreme Court of Indiana.

Dec. 11, 1964.

Probst & Probst, Kendallville, for appellant.

Grimm & Grimm, Auburn, for appellee.

LANDIS, Judge.

This is an appeal from an adverse judgment in a paternity proceeding brought under Burns' Sec. 3-623 (1946 Repl.), et seq., ¹ and as a result of which appellant, after a jury trial, was adjudged to be the father of a child born to the appellee-petitioner Eleanor Jean Bender, and was ordered to pay certain prenatal and postnatal expenses of appellee-petitioner and assume the obligations of a father of said child.

This cause comes to us on petition to transfer from the Appellate Court pursuant to Rule 2-23 of this Court, the opinion of the Appellate Court appearing in 194 N.E.2d 94.

Appellant contends on this appeal that the lower court erred in refusing to grant him a new trial upon the ground of newly discovered evidence, appellant's motion in this respect stating:

'That this defendant [appellant] has, since the trial of said cause and the verdict was returned, discovered new, competent and material evidence which he could not, with reasonable diligence, have discovered and produced at the trial of this cause and which can now be produced if a new trial of this cause is had, and which is material to the defendant's [appellant's] cause. * * *'

Appellant filed as exhibits with said motion for new trial two affidavits stating in substance that the two affiants had personal relations with appellee during the period when conception could have taken place, and that said affiants had no knowledge of the trial on February 8, 1961, but only learned thereof since said time. Appellee filed counter-affidavits of herself and her father in opposition to the previous affidavits and denying the facts contained in such previous affidavits.

We are unable to agree with appellant's contention that he has made out a case for the reversal of the judgment of the lower court on the basis of the allegedly newly discovered evidence as that would require us to weigh the facts contained in conflicting affidavits. ² This case is distinguishable from Opp v. Davis (1962), 133 Ind.App. 365, 372, 179 N.E.2d 298, 301, 180 N.E.2d 788, relied upon by appellant, as in that case no counter-affidavits were filed in opposition to the previous affidavits supporting the motion for a new hearing or new trial. In that case the Court stated at p. 374 of 133 Ind.App., and p. 302 of 179 N.E.2d:

'In our opinion the unchallenged and undenied allegations contained in the said affidavit attached to and made a part of appellant's motion for a new hearing, were sufficient to warrant the court to open the case and hear any additional evidence having a bearing upon whether others than appellant may have had sexual relations with appellee during the period in which conception could have taken place. * * *' (Emphasis ours.)

It should be further pointed out that the supporting affidavits in the Opp case contained allegations as to sexual intercourse with others at the time in question, but the affidavits in the instant case alleged only 'personal relations' of others with appellee, whatever that may be. ³ An affidavit alleging newly discovered evidence should set forth specifically the exact testimony or evidence that would be elicited at a new hearing from the witness or witnesses in question, and should not state the same ambiguously or in a manner requiring inferences to be drawn from it to give it probative force. The instant affidavits were in our judgment also insufficient for this reason.

Appellant has further contended that the court erred in overruling his motion to exclude the child from the courtroom at the hearing of said cause.

The statute ⁴ pertaining to the trial of these proceedings provides:

'The hearing shall be by the court but if either party demands a jury, it shall be by jury. Both the mother and the alleged father shall be competent to testify but the alleged father shall not be compelled to give evidence. The court shall exclude the general public from the hearing, and admit only those persons directly interested in the case, including officers of the court.' (Emphasis ours.)

It is appellant's argument that the child involved in this case should have been at all times excluded from the courtroom notwithstanding the above statute. We are unable to ignore the plain language of the above statute which, while excluding the general public from thses proceedings, specifically provides the court may admit those persons directly interested ⁵ in the case. It is difficult to imagine a person more directly interested in the case than the child for whose benefit the action for care, support and maintenance was brought. The fact that this Court has heretofore considered such child in these proceedings to be an interested party is evident from State ex rel. Taylor v. Greene Circuit Court (1945), 223 Ind. 562, 564, 63 N.E.2d 287, 288, wherein it is stated:

'* * * The purpose of the action in said court was to secure the relief provided for an unmarried mother, her illegitimate child, and other interested persons by Chapter 112, Acts 1941, page 301 et seq., approved March 6, 1941, Burns' 1933 (Supp.) Sec. 3-623 to Sec. 3-655, inclusive.

* * *

* * *

'* * * There are thirty-six sections in the act, covering many matters in which such a child or its mother might be interested, * * *.' (Emphasis ours.)

The child obviously was an interested person within the statute, and in our judgment the court committed no error in overruling appellant's motion to exclude him from the courtroom.

See also: Brown v. State, ex rel. Pavey (1932), 94 Ind.App. 669, 673, 182 N.E. 263, 264; Price v. State, ex rel. Gorden et al. (1918), 67 Ind.App. 1, 6, 118 N.E. 690, 692; Lewis v. Hershey (1910), 45 Ind.App. 104, 106, 90 N.E. 332, 333.

Appellant has also complained of the giving of the court's instruction no 8 which in substance told the jury they should not take into consideration the appearance of the countenance of the child nor draw any conclusions therefrom but that the jury should look only to the evidence given at the trial.

Appellant's objection is that this instruction by telling the jury not to take into consideration the appearance of the child or draw any conclusion therefrom, in fact called particular attention to the child.

This instruction correctly states the law as supported by numerous authorities of this jurisdiction (See; La Matt v. The State, ex rel. Lucas (1891), 128 Ind. 123, 27 N.E. 346, and Reitz v. The State, on the Relation of Holden (1870), 33 Ind. 187), and was obviously intended to prevent appellant being prejudiced in the minds of the jury by the presence of the child in the courtroom. If the jury followed the instruction appellant in our judgment would not be prejudiced.

Judgment affirmed.

ARTERBURN, C. J., and ACHOR, JJ., concur.

JACKSON, J., concurs in result.

MYERS, J., dissents with opinion.

MYERS, Judge (dissenting).

In my opinion, the Appellate Court correctly decided this case when it reversed the trial court. (Nott v. Bender [1963], Ind.App., 194 N.E.2d 94.) It cites with approval the case of Opp v. Davis (1962), 133 Ind.App. 365, 374, 179 N.E.2d 298, 302, 180 N.E.2d 788, and quotes at length from it concerning the 'intimate' nature of paternity cases such as this, and which says in substance that a more liberal approach should be taken by a juvenile court in making extended inquiry as to the truth or falsity of the matter asserted and that 'such finding should be predicated upon something more than conjecture, chance, or the mere opinion of the mother that the person charged is the father.'

Here, two affidavits were filed after the trial by two men who stated under oath that each had had 'personal relations' with the petitioning mother at about the same time she claimed the defendant-appellant had had sexual relations with her. One affiant stated that he had had three 'social engagements' with appellee beginning June 3, 1959, when he had 'personal relations' with her; that a week later he 'again had relations' with her; and in July he again had 'personal relations' with her. These affidavits were attached to the motion for new trial, and it was claimed that the appellant had no knowledge of this until after the jury had rendered its verdict. He asked for a new trial on the basis of newly-discovered evidence. A counter-affidavit was filed by the appellee which denied that she had had 'personal or sexual relations' with either of the two affiants although she claimed she knew them and had been out with one of them on different occasions.

The majority opinion herein attempts to distinguish the Opp case in that there were no counter-affidavits filed therein, and that the affidavits which were filed contained allegations as to 'sexual intercourse,' while in this case the affidavits alleged only "personal relations' of others with appellee, whatever that may be.'

We hope we are not devoid of some sophistication in this modern would in which we live. Yet, indeed, it may be considered a pleasure that we do not have to be informed of sexual acts without the use of four-letter words which seem to be the style today in the field of literature and drama. The restrained choice of words used by affiants in these affidavits should not be misinterpreted by the sophisticate. Even the dictionary says that the word 'relations' (used as a noun) means: 'sexual union (charged with having--with a woman not his wife).' Webster's Third New International Dictionary, Unabridged, page 1916. In view of the circumstances of this case, I feel certain my fellow Judges were not entirely ignorant of the meaning of the phraseology set forth in these affidavits. Thus, I am in full accord with the Appellate Court opinion that the affidavits put the trial court on notice that there was...