State ex rel. Bissell v. Devore

• Citation: 281 N.W. 740,225 Iowa 815
• Decision Date: 18 October 1938
• Docket Number: 44407,44452.
• Parties: STATE ex rel. v. DEVORE (two cases). BISSELL
• Court: Iowa Supreme Court

281 N.W. 740

225 Iowa 815

STATE ex rel. BISSELL v. DEVORE (two cases).

Nos. 44407, 44452.

Supreme Court of Iowa.

October 18, 1938

Appeal from District Court, Adams County; Homer A. Fuller, Judge.

An action instituted under the provisions of Chap. 544-A1 of the 1935 Code to determine the paternity of an illegitimate child and provide for its support. The defendant was found guilty by a jury and judgment was entered against him as is shown in the opinion. The defendant appeals.

Reversed.

O. M Slaymaker, R. E. Killmar, and D. D. Slaymaker, all of Osceola, for appellant.

Ned B Turner, Co. Atty., and Ed Fackler, both of Corning, for appellee.

ANDERSON, Justice.

This is an appeal from a judgment rendered in an action to determine the paternity of a child born out of wedlock and involves, among other things, a determination as to the constitutionality of Chap. 544-A1 of the 1935 Code of Iowa. The Chapter in question is not found under Title 35 of the Code relating to criminal law and public offenses and it is in fact, a special proceeding designed particularly and only for the purpose of establishing paternity and providing for the support of illegitimate children. It is not a criminal proceeding and is tried as an ordinary action. The Chapter was enacted by the 41st G. A. The enactment repealed Chap 544 known as " Bastardy Proceedings" which had been the statutory remedy with slight change since the second state legislative assembly and appeared for the first time in the Revised Statutes of 1843 as Chap. 52. The title to that Act was " An Act to Provide for the Support of Illegitimate Children" and Sec. 5 of the Act provided for judgment to be entered against the person accused of being the father, in the event of such a finding by a jury, for the costs of prosecution and the expense for the maintenance of such child in such sum or sums as the court might order, and that the defendant should be required to give security to perform the order of the court. And the Act further provided that " in case the reputed father shall refuse or neglect to give security as aforesaid, and pay the costs of prosecution, he shall be committed to the jail of the proper county, there to remain until he shall comply with the order of the court, or until such court shall, on sufficient cause shown, direct him to be discharged."

In the present Act, Secs. 12667-a35 to 44, inclusive, we find provisions practically the same as those quoted above from the Revised Statutes of 1843, and these are the provisions with which we have to do in the disposal of this appeal. The Act as originally appearing in the Revised Statutes of 1843 was held unconstitutional by this court in the case of Holmes v. State, 2 G. Greene, Iowa, 501, to which we will later refer. The mandate of the supreme court as contained in the Holmes decision was obeyed by the General Assembly and the penal provisions of the original Act were omitted from the Code of 1851, § 848 et seq., and no subsequent legislature attempted to ignore that mandate until the present existing Act was passed by the 41st G. A. in the year 1925. The Act as appearing in the Code of 1851 continued in the Revision of 1860, § 1416 et seq., in the Code of 1873, § 4715 et seq., in the Code of 1897, § 5629 et seq., and in the Code of 1924, § 12658 et seq. And, as we have indicated, remained the settled statutory law of Iowa until its repeal by the 41st G. A. which enacted in its stead Chap. 544-A1, and now appears under that title in the Code of 1935.

The defendant in this case was charged in the district court of Adams County with being the father of an illegitimate child born to one Pauline Bissell in April, 1937. The complaint was filed by Pauline Bissell as the mother of the illegitimate child and prayed that the defendant be required to answer the complaint; that she have judgment declaring the paternity of said child; and that she have judgment for the necessary expense incurred in connection with the birth of said child, and for judgment in the sum of forty dollars per month for the support of said child until it reaches the age of sixteen years, " and prays for such other orders by the court as the court may deem just and equitable in the premises." The defendant appellant by answer generally denied the allegations of the complaint. There was a trial to a jury resulting in a verdict finding the defendant " guilty of being the father of an illegitimate Child * * * and liable for its support." Upon return of this verdict the court pronounced a judgment decreeing that the defendant Arley Devore is the father of the illegitimate child involved in the action. And the trial court went further than this and made the following additional finding and pronouncement:

" The Statute provides that in a case of this kind where the man is found to be the father of the child that he must furnish support for the child in a reasonable amount. Now that altogether depends upon the things surrounding the child and things surrounding the defendant and his ability to pay. Mr. Stanley says he has no money or property at this time, so the only thing the Court can do is to order he furnish a bond for support. I am going to provide that he shall pay the costs of the confinement of the mother of $93.00, then I am going to provide that he will pay at the rate of $10.00 per month from the birth of the child till the first of January, 1938, for which sum the judgment will be entered at this time. Then I am providing that he must pay $10.00 per month payable quarterly, that is four times a year, to the Clerk of this Court for the aid and benefit of the mother Pauline Bissell until this child reaches the age of sixteen years. Judgment entry will also provide that if this defendant is unable or unwilling to pay the confinement charges and the support money at this time that he must be confined in the jail of this County unless he gives a bond conditioned to pay those charges and the continuing charges during the period of time until the child reaches the age of sixteen years, then the order will be and mittimus will issue for the confinement of this boy in jail for one year's time. I want to say to him and his folks that may be here, the confinement in the jail, if he does go to jail, doesn't discharge the judgment, it will always be over him, then at the end of that period of time he could be charged with child desertion just as often as he didn't pay, he could be committed to the penitentiary for failure to support this child, so it wouldn't gain him anything or wouldn't gain his people anything by allowing him to go to jail here, a year in jail, because at the end of that time he could be charged with child desertion, and just as often as he didn't pay for the support of the child he could be committed all the time up to the time this child is sixteen years of age. But that will be the order. I have drawn a tentative form of judgment order, Mr. Turner, and this boy will be in the custody of the Sheriff then, until this bond is given conditioned to pay these amounts. You see that the Sheriff takes charge of him, mittimus will issue.

I don't think the Court could imprison him, the costs of the action might be a...