Poole v. French

Decision Date06 May 1905
Docket Number14,003
Citation80 P. 997,71 Kan. 391
CourtKansas Supreme Court

Decided January, 1905.

Error from Cloud district court; SAM KIMBLE, judge pro tem.

Judgment affirmed.



1. BASTARDY--Taxing of Costs to Defendant. Although there is no provision found in chapter 47 of the General Statutes of 1901, commonly known as the bastardy act authorizing the taxing of the costs of an action arising thereunder to the defendant, yet the character of the action is such as to authorize the costs so to be taxed, under section 589 of the code of civil procedure (Gen. Stat. 1901, sec. 5075).

2. TITLE AND OWNERSHIP--Sale of Equity under Execution. Land held by an equitable title may be levied upon and sold in this state by virtue of a general execution.

TITLE AND OWNERSHIP--Code Provisions Distinguished. The remedy afforded by sections 481, 482 and 483 of the code of civil procedure (Gen. Stat. 1901, secs. 4957-4959), commonly known as proceedings in aid of execution, for ascertaining and taking equitable interests in real estate, is not the only provision for that purpose found in the statutes; it is merely cumulative, or alternative.

Caldwell & Wilmoth, and Ellis, Cook & Ellis, for plaintiff in error.

F. W. Sturges, Park B. Pulsifer, and Dwight M. Smith, for defendant in error.

CUNNINGHAM J. All the Justices concurring.



Plaintiff in error was defeated in her suit to quiet title to certain real estate. The judgment against her must be affirmed unless she shall succeed in establishing the correctness of one or the other of the following propositions, which she asserts: (1) Neither under the common law nor the statutes of Kansas can a judgment for costs be rendered against the defendant in a bastardy proceeding; (2) neither under the common law nor the statutes of Kansas can an equitable interest in real estate be sold under execution.

The process of reasoning adopted by the plaintiff in error to sustain the first proposition is as follows: The right to recover costs does not exist at the common law; so, if it exists at all in any case, warrant therefor must be expressly found in the statutes; under sections 5075, 5076 and 5077 of the General Statutes of 1901 costs are allowed only in actions, civil or criminal; the proceeding under the bastardy act is not an action, either civil or criminal, but is a special proceeding, such as is designated in sections 3, 4 and 5 of the code of civil procedure (Gen. Stat. 1901, §§ 4431-4433), which read as follow:

"3. Remedies in the courts of justice are divided into--First, actions; second, special proceedings.

"4. An action is an ordinary proceeding in a court of justice by which a party prosecutes another party for the enforcement or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense.

"5. Every other remedy is a special proceeding."

To maintain the claim that the bastardy prosecution is a special proceeding, and not an action as defined by the foregoing sections, several cases decided by this court are quoted in which such prosecution is spoken of as a proceeding. (In re Wheeler, Petitioner, 34 Kan. 96, 8 P. 276; Moore v. The State, ex rel., 47 id. 772, 28 P. 1072, 17 L. R. A. 714; In re Lee, Petitioner, 41 id. 318, 320, 21 P. 282; The State v. Baker, 65 id. 117, 69 P. 170; The State v. Jehlik, 66 id. 301, 71 P. 572, 61 L. R. A. 265.) In all of these references it will be noted, however, that the term "proceeding" is used incidentally and not with an attempt at classification to fit the statutory definition. Such an attempt has never been made by this court.

In view of the provisions found in section 5080 of the General Statutes of 1901, which directs that the several clerks of the district courts shall tax the costs in each case and insert the same in their respective judgments, it may well be doubted, admitting this to be a special proceeding, whether the costs thereof are not properly taxed against a defendant; but we are of the opinion that a bastardy prosecution under our statute responds in all essential respects to the definition of an action found in section 4 of the code of civil procedure, above quoted.

The bastardy act, which is chapter 47 of the General Statutes of 1901, provides for the arrest of the person charged by the oath of the relatrix; that he be brought before a justice of the peace; that the justice proceed to hear the complaint, in which hearing the rules of evidence and the competency of witnesses shall be the same as in civil cases; and, if the justice upon the hearing adjudge the defendant to be the father of the illegitimate child, he shall require the defendant to enter into a recognizance to appear at the next term of the district court to answer the complaint. Both in the district court and before the justice of the peace the trial and proceedings are governed by the law regulating civil actions. The death of the mother pending the prosecution does not abate the action if the child be living, but a guardian ad litem may be appointed and the suit proceed, the guardian, however, not being liable for costs. The trial in the district court is by the court or jury, and a money judgment for the maintenance and education of the child must be entered against the defendant if he be found guilty, upon which execution may issue and be satisfied as in other cases.

The prosecution is under the direction of the relatrix; she may accept satisfaction and dismiss the action. (Gleason, Sheriff, v. Comm'rs of McPherson Co., 30 Kan. 492, 2 P. 644; The State v. Baker, 65 id. 117, 69 P. 170.) The money judgment is collectable by her, and her only, if she be alive. Whether it be called an action or a special proceeding matters little. It is being prosecuted by a party who has a right under the statute so to prosecute against another party, who is called a defendant, for the enforcement of a right given to her by the statute. The statute contemplates that costs shall be taxed to some one, for it says that under certain circumstances the justice shall receive no fees; it also provides that a guardian prosecuting for a child after the death of the mother shall not be liable for costs. It has also been decided that in no event is the county liable for costs. (Gleason, Sheriff, v. Comm'rs of McPherson Co., supra.) Now, if costs are to be taxed is it reasonable to suppose it was the purpose of the legislature to have them taxed against a successful prosecutrix, or against an unsuccessful defendant whom she is proceeding against for the enforcement of a right?

With these things drawn from the bastardy act in mind, and remembering further that that act took effect at the same time that the civil-procedure act did, we come to the conclusion that section 5075, cited above, applies to an action or proceeding to compel the putative father of a bastard child to support it; that such a proceeding is one for the recovery of money only, and as such the judgment in favor of the relatrix draws with it the costs of the action, and that such costs are properly taxed against the defendant. This conclusion is fully supported by the case of Jones v. The State, 14 Neb. 210, 14 N.W. 901, where it was held:

"Proceedings under the bastardy act are in the nature of a civil action to enforce the performance of a special and moral obligation--the support by a father of his child."

In that case it was held that, though the defendant be found not guilty, it was competent to tax a portion of the costs against him, under the provisions of a section of the Nebraska code identical with those of our section 5077 of the General Statutes of 1901.

Great stress is laid by plaintiff in error upon the fact that by the bastardy act of 1862, which was superseded by the present law, provision was made in specific terms for taxing costs against the defendant, the argument being that its omission from the present law is a clear indication of a change of policy and purpose. Under certain circumstances this would be a strong argument. It is, however, very much weakened, if not entirely destroyed, when we note the fact that the whole structure of the law was changed. Under the former act it was a proceeding largely in the interest of the state, in order to make some provision whereby the bastard child should not become a public charge, and the action could be maintained without the consent of the mother; so that it may well be doubted if the distinctive characteristics of an action, as laid down in section 4 of the code, were found in the bastardy act as it then was.

We note the further difference in the two acts in this, that section 8 of the present one provides:

"The trial and proceedings of such prosecution, both before the justice and in the district court, shall in all respects not herein otherwise provided for be governed by the law regulating civil actions." (Gen. Stat. 1901, § 3327.)

No such provision is found in the former act. It might not be a far stretch here to construe the word "proceedings" as indicating all steps taken in an action, including specially the taxation of costs, when we consider the clear implication elsewhere found that costs were to be taxed to some one; at least, this section carries with it a strong suggestion of the close relationship of the proceeding under the new act to a civil action. We cannot affirm plaintiff's first proposition, but think that costs are properly taxable against an unsuccessful defendant in a bastardy prosecution.

The facts upon which a discussion of the second proposition must rest were found by the court and, briefly summarized, are as follow: On July 27, 1895, DeWitt C. Poole and his brother were...

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