Rawlings v. Rawlings

• Decision Date: 10 November 1919
• Docket Number: 20792
• Court: Mississippi Supreme Court
• Parties: RAWLINGS v. RAWLINGS ET AL

83 So. 146

121 Miss. 140

RAWLINGS v. RAWLINGS ET AL

No. 20792

Supreme Court of Mississippi

November 10, 1919

October 1919

APPEAL from the chancery court of Adams county, HON. R. W. CUTRER Chancellor.

Bill by Earl Rawlings and others by next friend against Thomas Rawlings. From a decree for plaintiff, defendant appeals.

The facts are fully stated in the opinion of the court.

Decree reversed.

Ernest E. Brown, for appellee.

I submit with confidence the lower court should have sustained the demurrer, even if the bill of complaint can be treated as if it had charged defendant was able to support complainant's and had wrongfully refused to do so. In short a child cannot successfully maintain in Mississippi a suit in any court against his father for a support. As was decided in East v. King, 77 Miss. 738. he is legally liable to those who furnish his minor child with necessaries, where it is shown he was able to furnish the necessaries and wrongfully refused to do so, but the child cannot sue the father for an allowance or act as the judge of what his father should furnish him. A disinterested third person must look into the question as to whether what he furnishes the minor are necessaries that his father has wrongfully failed to furnish, and can only recover from the father upon alleging and proving he furnished necessaries the father could furnish and had wrongfully failed to furnish.

In many states where it is the law that a father is legally as well as morally bound to support his indigent minor child, there are statutes which prescribe how this legal duty may be enforced. In Mississippi a father who is able is liable legally as well as morally to support his minor child, who is indigent and incapable of supporting himself.

We have two statutes bearing upon the subject, to wit: Sections 3571 and 5055 (K) of Code of 1906, which reads as follows "3571 (3148) Certain relatives bound to support pauper.--The father and grandfather, the mother and grandmother, and brothers and sisters, and the descendants of any pauper not able to work, as the board of supervisors shall direct, shall at their own charge, relieve and maintain such pauper; and in case of refusal shall forfeit and pay the county the sum of eight dollars per month, for each month they may so refuse, to be recovered in the name of the county; and shall be liable to any person who supplies such poor relative, if abandoned, with necessaries, not exceeding said sum per month."

"5055. Vagrants, who are (Laws 1904, ch. 144): The following persons are and shall be punished as vagrants, viz: Every person who shall abandon his wife or family, without just cause, leaving her or them without support, or in danger of becoming a public charge."

Under section 3571, of Code of 1906, the father of a pauper child who is unable to work, is liable for the support of such child and to pay the county eight dollars per month or any person who furnishes the necessaries for such child not exceeding eight dollars per month for every month he fails to furnish such child with necessaries.

Sec 5055 (K) makes a father, who abandons his child without just cause, leaving him in danger of becoming a public charge a vagrant, and under the following section 5058 the father is made liable to commitment to jail, unless he gives bond for support of such child.

The above statutes contemplate that the county or a person furnishing the indigent child with necessaries can recover from a parent for same to an amount not exceeding eight dollars per month or that the state on an affidavit charging the father with being a vagrant on account of his leaving an indigent child without support can compel the father to give bond for support of his child for twelve months. There is however, no statute of this state or decision of this court that even hints that a child, no matter how young or indigent or helpless, can sue his father for a support. On the contrary every expression of this honorable court from its earliest history is opposed to the contention of appellees that they can maintain a suit for a support against their father. It has expressly held a minor child could not recover from his father for personal injuries inflicted by his father upon him.

"The peace of society, and of families composing society, and of a sound public policy, designed to subserve the repose of families and the best interest of society, forbid to the minor child a right to appear in court in the assertion of a claim to civil redress for personal injuries suffered at the hands of the parent. The state through its criminal laws will give the minor child protection from parental violence and wrongdoing, and this is all the child can be held to demand." Hewlett v. Ragsdale, 68 Miss. 703, 711.

In another case decided fifteen years later or during November Term, 1916, it was decided even that one standing in loco parentis towards a child is not liable in damages to the child for chastisement inflicted upon the child. CALHOUN, J., in delivering the opinion of the court said: "It is conceded and is plainly the law, that, if Holmes stood in loco parentis, there could be no civil action by the child, it is also conceded as is clear from this record, that he was in that relation, unless it was changed by the testimony of the mother, contradicted by several witnesses, that when she gave the child, she said she was not to be whipped. This does not alter the relation or change the status of the child, who was to be taken and treated as one of the children of the family." Rosa Fortinberry by next Friend v. Marshall Holmes, 89 Miss. 373, Ib. 42 So. 799.

It is true a chancery court has jurisdiction to render decrees for the management and sale of property of minors, but in the instant case no property or property rights of a minor are involved, but minors simply have sued their fathers for an allowance and asked that the allowance be made a lien upon property of their father. The lower court treated the suit of the minors as if it was one by an indigent wife for a decree for alimony against her husband, who was able to support her and had wrongfully failed so to do. The chancery court is vested with full jurisdiction of marriage and divorce by chapter 37, of Code of 1906, and as divorces are discouraged by the courts in the interest of society as well as of the family life, this court has favored the granting of alimony to an indigent wife against an erring husband dissolving the bonds of matrimony. Garland v. Garland, 50 Miss. 694; Verner v. Verner, 62 Miss. 260; McFarland v. McFarland, 64 Miss. 449.

Where the wife is entitled to alimony either with or without a divorce being granted her, she has an interest which enables her to vacate an invalid conveyance of the homestead by the derelict husband. Scott v. Scott, 73 Miss. 575, 580.

The wife's right to alimony constitutes an interest in her husband's estate, which she can protect by describing in her bill of complaint the real estate of her husband upon which she wishes the alimony made a lien and by filing a lis pendens notice under section 3148, of code of 1906, describing the realty to be fixed with a lien for payment of the alimony. See Gallaspy's Sons Co. v. Massey, 99 Miss. 208, 216.

There is, however, no statute of this state or decision of this court that even hints a minor child has an interest in his father's estate that enables him to obtain a decree against his father for a support and fix as security for its payment a lien upon his father's realty, and the decision of the lower court is contrary to all previous expressions of this court, which deny the minor child the right to sue his father even for a personal injury.

Should the startling decision of the chancellor be affirmed and established as the law in this state, parental discipline will be undermined, the welfare of society and peace of families disturbed and the courts likely be flooded with suits by extravagant and unruly minor children against their fathers for unreasonable allowances to be fixed as liens upon real estate of their fathers, in which they have no interest whatever.

Parental discipline, the peace of the family and public policy forbid that a minor child should have the right to sue his father for an allowance and have same fixed as a lien upon the father's realty.

L. T. Kennedy, for appellee.

It is admitted that it is the legal duty of the father to support and maintain his children and complainants in pursuance of their legal rights ask a remedy. We will take up the questions presented in counsel's brief in their order.

He contends there is no description given in the bill of complaint of the plantations, neither the county in which they are located, nor whether they are income producing or not. Our answer to this is--that it is not necessary to describe the property in detail in the bill of complaint, but the lis pendens notice is the proper place to insert the description of the property. As to whether the property is income producing or not is absolutely immaterial upon the question of the children's right to a support from their father. The law books lay down the principle that it is the duty of the father to support and maintain his children, and we nowhere find this principle conditioned upon the fact as to whether or not his property is income producing, or whether or not he is able financially. The question of his ability financially only has to do with the amount or the station in life in which he shall maintain his children. We submit that it is not necessary that it should be alleged that the father is able to support his children.

However the bill of complaint alleges that he is the owner of certain plantations and the lis pendens record in the same cause...