State ex rel. Burkhart v. Ferguson

Decision Date12 December 1919
Docket NumberNo. 32428.,32428.
Citation174 N.W. 934,187 Iowa 1073
PartiesSTATE EX REL. BURKHART v. FERGUSON.
CourtIowa Supreme Court

OPINION TEXT STARTS HERE

Appeal from District Court, Harrison County; O. D. Wheeler, Judge.

Defendant was found guilty in a bastardy proceeding, and appeals. Affirmed.Burke & Tamisiea, of Missouri Valley, for appellant.

S. H. Cochran and P. E. Roadifer, both of Logan, for appellee.

STEVENS, J.

Minnie Kuhlman, who was then unmarried, was on May 29, 1914, delivered of an illegitimate child and on November 3, 1915, she married Paul Burkhart. On February 2, 1916, a complaint charging defendant with the paternity of the child and asking judgment in the sum of $3,000, and an order charging the defendant with the maintenance thereof, was filed in the office of the clerk of the district court of Harrison county. A trial was had to a jury resulting in a verdict of guilty. The defendant on the trial denied that he at any time sustained illicit relations with the mother and sought to show facts from which the jury might infer that Burkhart was the father of the child. The evidence offered was, however, wholly insufficient for that purpose.

Mrs. Burkhart testified that her husband came to see her about a week after the child was born, at which time a marriage between them was discussed. The sole reliance of defendant for reversal is his contention that Paul Burkhart, by his marriage to the mother of the child, stands to it in the relation of a parent, and that, as the marriage occurred during the period while the child received nourishment from the mother, the doctrine of State v. Shoemaker, 62 Iowa, 343, 17 N. W. 589, 49 Am. Rep. 146, to the effect that a party marrying a pregnant woman is presumed to be the father of the child, is applicable. We fail to find any reason for applying the doctrine of that case to the case at bar. The reason of the rule announced in State v. Shoemaker, supra, is stated as follows:

“One who marries a woman known by him to be enceinte is regarded by the law as adopting into his family the child at its birth. He could not expect that the mother upon its birth would discard the child and refuse to give it nurture and maintenance. The law would forbid a thing so unnatural. The child, receiving its support from the mother, must of necessity become one of her family, which is equally the family of the husband. The child, then, is received into the family of the husband, who stands as to it in loco parentis. This being the law, it enters into the marriage contract between the mother and the husband. When this relation is established, the law raises a conclusive presumption that the husband is the father of his wife's illegitimate child. We must not be understood to...

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