State ex rel. Berge v. Patterson

• Decision Date: 30 June 1904
• Citation: 100 N.W. 162,18 S.D. 251
• Parties: STATE OF SOUTH DAKOTA ex rel. ANNA T. BERGE, Plaintiff and respondent, v. F. B. PATTERSON, Defendant and appellant.
• Court: South Dakota Supreme Court

18 S.D. 251

100 N.W. 162

STATE OF SOUTH DAKOTA ex rel. ANNA T. BERGE, Plaintiff and respondent,

v.

F. B. PATTERSON, Defendant and appellant. South Dakota Supreme Court Appeal from Circuit Court, Potter County, SD Hon. L. E. Gaffy, Judge Affirmed A. L. Ellis, Albert Gunderson, Murtha & O'Keefe Attorneys for appellant. S. W. Cosand, S. M. Howard, R. B. Fisk Attorneys for respondent. Opinion filed June 30, 1904

FULLER, J.

On the 1st day of October, 1901, and in the manner provided by section 807 of the Revised Code of Civil Procedure, Anna T. Berge filed her sworn complaint with a justice of the peace as follows:

“Anna Berge, being duly sworn, on oath compfains and charges that the defendant, F.B. Patterson, at the said county of Potter. on the 20th day of May, A. D. 1898, did cohabit and have sexual intercourse with affiant, and that said cohabitation continued for several weeks, and that by said cohabitation with said defendant this plaintiff became pregnant with child, and that afterwards, to-wit, on the 11th day of February, 18919, this affiant was delivered of a bastard child, of which defendant was the father, and that this affiant was then and there an unmarried woman—against the peace and dignity of the state of South Dakota, and contrary to the form of the statutes in such case made and provided and prays that the said F. B. Patterson may be arrested and dealt with according to law.”

Being held to the circuit court to answer the foregoing complaint, the defendant demurred thereto as follows:

“First. That the complaint does not state facts sufficient to constitute a cause of action.

Second. That the complaint does not state facts sufficient to charge an offense; that it appears upon the face of the complaint that the action is, and was at the time of the commencement thereof, barred by the statute of limitations.”

This being “an action upon a liability created by statute, other than a penalty or forfeiture,” there is no merit in the contention that the state is seeking to recover a forfeiture or penalty that is barred in two years by the statute of limitations. A civil action to enforce the moral, natural, and statutory obligation of the father to support his illegitimate child may be commenced at any time within six years, and section 60 of the Revised Code of Civil Procedure settles adversely to the defendant this question urged in support of his demurrer. Moreover, the personal immunity afforded by the statute of limitations is not available on demurrer, and is waived unless properly asserted by way of answer, Section 39 of the Revised Code of Civil Procedure expressly provides that “the objection that the action was not commenced within the time limited can only be taken by answer.” Meyer v. School District,(1893); McConnell v. Spicker,(1901).

The evidence, though conflicting in some material particulars, is sufficient to justify the jury in finding that the complainant was a domestic in the Patterson family at Gettysburg, in this state, from the middle of February, 1898, until about the 20th of July of that year, during which time she had frequent sexual intercourse with the defendant, and thereby became pregnant. Upon her condition being known, she was induced by the defendant to accompany his father to Pierre, with the expectation of being received into a home provided for unfortunate women. Learning that this institution had been discontinued, she was sent from Pierre to St. Paul, Minn., where her child was born on the 11th day of February, 1899, and she did not return to this state until September, 1901. It is contended by counsel for appellant that our statute has no application to a case where the child, though begotten in this state, is born in another state, and the trial court was wholly without jurisdiction to entertain the matter. The right to make such a complaint as the one before us is given by the statute to any unmarried woman who has given birth to a child which by law is deemed to be a bastard, and the object of the proceeding is not the imposition of a penalty, but to compel the putative father to provide maintenance for his child, and thus secure the public against the necessity of doing so. Section 807, supra; 5 Cyc. 645, and cases there collated. The Legislature has made no distinction as to children born beyond the borders of South Dakota, and, when the mother makes sworn complaint before any justice of the peace of a county within this state where the alleged father may be found, the warrant of arrest must issue, and the accused be brought before such justice; and, if sufficient cause be shown upon examination, he must enter into an undertaking to appear and answer her complaint at the next term of the circuit court, and, upon his failure or refusal to thus bind himself, he is committed to the county jail to await trial. In holding the father of an illegitimate child liable for its maintenance and support in a case exactly like this, and based upon a similar statute, the Wisconsin court say:

“The obligation of the father to support a bastard child grows out of the paternal relation existing between him and such child, and we therefore deem it quite immaterial, so far as his obligation and duty are concerned, whether the child is born out of the state or not, The object of the statute is to save the public from the burden of supporting illegitimate children, by compelling the father to provide for their maintenance, It is the father’s duty to support his children, legitimate or illegitimate; and, because he is likely to neglect it in the latter case, the law enforces the obligation by proceedings under bastardy acts. This is the ground upon which these statutes are founded. What difference can it make to any county or town in this state which is about to be burdened with the support of an illegitimate child whether the child was begotten and horn in such county or town or in England or Germany? If the father is within the state, where he can be held amenable to our laws, and in a town or county where the child is likely to become a charge, it is right and proper that he should support his own offspring, and the law will compel him to do so. The accident of the birthplace of such child ought not to be permitted to affect this general universal obligation growing out of the paternal relation.”

Duffles v. State, 7 Wis. 672. From the case of Hodge v. Sawyer, 85 Me. 285, 27 Atl. 153, we quote as follows:

“The defendant is a resident of this state. It would be unreasonable to hold that he was not amenable to our laws because, from distress, the complainant sought shelter in her father’s house, in another state the only place for her to go, outside of the almshouse.”

Whenever the courts have been called upon to construe statutory provisions similar to ours, they have held almost universally that any unmarried woman may make complaint against the father of her bastard child, without regard to the place where such child was born, and the following cases are to that effect: Cooper v. State, 4 Blackf. 316; Davis v. Carpenter, 172 Mass, 167, 51 N.E. 530; McGary v. Bevington, 41 Ohio St. 280; Sheay v. State, 74 Md. 52, 21 Atl. 607; Moore v. state, 47 Kan. 772, 28 Pac. 1072, 17 LRA 714; Mings v. People, 111 Ill. 98. With no qualification as to the place where the illegitimate child was begotten or born, our statute provides that “an unmarried woman who shall be pregnant or delivered of a child, which by law would be deemed a bastard.” may institute the proceeding by making her complaint in any county of this state where ‘the person accused may be found,” and we are not at liberty to pervert the legislative purpose by the interpolation of inconsistent descriptive phrases.

Although section 809, Rev. Code Civil Proc., found in the bastardy act, declares that the only issue to be tried is whether...