State ex rel. Gill v. Volz

• Decision Date: 05 July 1951
• Docket Number: No. 32456,32456
• Citation: 100 N.E.2d 203,156 Ohio St. 60
• Parties: , 45 O.O. 63 STATE ex rel. GILL v. VOLZ.
• Court: Ohio Supreme Court

Page 60

156 Ohio St. 60

100 N.E.2d 203, 45 O.O. 63

STATE ex rel. GILL v. VOLZ.

No. 32456.

Supreme Court of Ohio.

July 5, 1951.

Syllabus by the Court.

1. By amendment of Section 5, Article I, Ohio Constitution, effective October 8, 1912, and by amendment of Section 11420-9, General Code, effective August 3, 1931, a jury in a civil case or civil action may render a verdict on the concurrence of three-fourths or more of its members.

2. Although the General Assembly has, in the enactment of the General Code of Ohio, classified bastardy proceedings as 'quasi-criminal proceedings,' and although a bastardy proceeding possesses some of the characteristics of a criminal prosecution, the applicable statutes do not contemplate the punishment of a criminal act but only the enforcement of a moral duty of reimbursing the complainant for expense of and maintaining the child, and the civil nature of such a proceeding is such that a verdict of guilty against the putative father may be rendered upon the concurrence of three-fourths or more of the members of the jury

On June 28, 1946, a bastardy proceeding was instituted in the Court of Common Pleas of Franklin County, Division of Domestic Relations, upon the compliaint of Joan R. Gill charging the accused, Robert Volz, to be the father of the unborn child. The child was born prior to the trial of the case and was then living.

In September 1947, the case was tried in the Common Pleas Court, wherein a jury returned a verdict of guilty, nine jurors concurring. A motion for new trial was overruled, but the trial judge failed to enter a judgment that the accused was the reputed father of a bastard child.

On application to the Common Pleas Court, Division of Domestic Relations, to fix the money support for the mother during pregnancy and the expenses in connection with the birth of the child, the same were fixed at $819.46, and an order was made for the support of the child.

An appeal was taken to the Court of Appeals, 85 Ohio App. 207, 81 N.E.2d 796, which reversed the judgment of the Common Pleas Court because it had failed to enter any judgment after the return of the verdict of guilty by the jury, and ordered the cause remanded to the Court of Common Pleas for further proceedings.

Thereafter, in February 1949, without further hearing, the Common Pleas Court entered a judgment adjudging the accused to be the reputed father of the bastard child and ordering that such judgment be entered nunc pro tunc as of November 8, 1947. Following this entry, the Common Pleas Court, without taking any further testimony, re-entered its identical former judgment nunc pro tunc.

A second appeal was taken to the Court of Appeals which again reversed the judgment of the Common Pleas Court on the ground that the latter court was in error in entering such judgment nunc pro tunc and again remanded the cause.

On June 7, 1950, the Common Pleas Court, without further hearing, entered a judgment as of that date adjudging the accused to be the reputed father of a bastard child, whereupon the Division of Domestic Relations of such court re-entered its judgment for expenses of the child's birth, support of the mother during pregnancy and the child's support and maintenance from its birth and ordered that the accused be committed to jail if he neglected to comply with the order of the court.

On appeal on questions of law, that third judgment was affirmed by the Court of Appeals, and, on motion, the judges of that court certified the record to this court for review and final determination on the ground that its judgment was in conflict with that of the Court of Appeals for Hardin county in State ex rel. Griffin v. Zimmerman, 67 Ohio App. 272, 36 N.E.2d 808.

Gale R. King, Columbus, for appellee.

C. M. Addison, Columbus, for appellant.

HART, Judge.

The accused, appellant herein, claims that since the statutory definition of a civil action is limited by Sections 11237 and 11238, General Code, to proceedings in a court of justice involving process, pleadings, and a judgment or decree for redress or the enforcement of a legal right, Missionary Society of M. E. Church v. Ely, 56 Ohio St. 405, 407, 47 N.E. 537, a bastardy proceeding may not qualify as a civil action in which a verdict may be rendered upon the concurrence of only three-fourths or more of the members of the jury. The accused bases this contention on a construction of a constitutional amendment and a statutory enactment following such amendment.

By amendment of the Ohio Constitution, effective October 8, 1912, Section 5, Article I thereof, provides:

'The right of trial by jury shall be inviolate, except that, in civil cases, laws may be passed to authorize the rendering of a verdict by the concurrence of not less than three-fourths of the jury.' (Italics supplied.)

This court subsequently held that the provisions for a verdict by three-fourths of the members of a jury in a civil case, carried into the Constitution by amendment of Section 5, Article I, was not self-executing and required legislation to give it effect. Elder v. Shoffstall, 1914, 90 Ohio St. 265, 107 N.E. 539. Consequently, the General Assembly in 1913, 103 Ohio Laws, 11, enacted Section 11455, a part of the Civil Code, which was afterwards amended and is now Section 11420-9, General Code, effective August 3, 1931, in form as follows:

'In all civil actions a jury shall render a verdict upon the concurrence of three-fourths or more of their number.' (Italics supplied.)

It is pertinent to consider the purpose and nature of the instant proceeding. It has been held that filiation statutes are generally considered to be in the nature of police regulations. Their purpose is 'to secure the support and education of the child and to protect society by preventing such child from becoming a public charge,' and 'even though the act of the putative father is regarded as an offense against the peace and good order of society, the penalty which the law imposes for his transgression is to enforce upon him the duty of making provision for the maintenance of his illegitimate offspring, rather than to punish him for misconduct.' 7 American Jurisprudence, 680, Section 80; State ex rel. Patterson v. Pickering, 29 S.D. 207, 136 N.W. 105, 40 L.R.A.,N.S., 144; State v. Brunette, 28 N.D. 539, 150 N.W. 271, Ann.Cas. 1916E, 340; annotations, 40 L.R.A.,N.S., 145, 146; 11 Ann.Cas. 317.

As above observed, the constitutional amendment authorized the General Assembly to provide for the rendering of a verdict in 'civil cases' by the concurrence of not less than three-fourths of the jury; and the General Assembly, in turn, pursuant to such authority, provided by statute that in all 'civil actions' a jury may render a verdict by the concurrence of three-fourths or more of its members. This court in construing these legislative provisions inferentially held that the term, 'civil cases,' used in Section 5, Article I of the Constitution, and the term, 'civil actions,' used in Section 11420-9, General Code, are the equivalents of each other and are used interchangeably. Miami Conservancy District v. Mitman, 100 Ohio St. 315, 125 N.E. 875. The problem before us is whether a bastardy proceeding is a civil case or a civil action permitting a verdict therein by the concurrence of three-fourths or more of the members of a jury.

The procedure in a civil action contemplates the filing of a petition upon which a summons is issued and service made upon the defendant; pleadings filed by the parties to develop the controverted issues; a hearing before a court or jury; a preponderance of the evidence as sufficient to support the cause of action; a finding by the court or a verdict rendered by a jury; judgment on the finding or verdict; execution upon the judgment; that the judgment debtor cannot be imprisoned for failure to satisfy the judgment of the court; that a failure to obey an order of the court may be made the subject of a contempt proceeding followed by imprisonment as a punishment for the refusal to obey the order; that the defendant may be compelled to testify at the instance of the plaintiff; and that a verdict may be rendered on concurrence of three-fourths or more of the members of the jury.

On the other hand, a bastardy proceeding involves the following:

A complaint may be filed by an unmarried pregnant woman and a warrant issued for the accused, who may be arrested and committed to jail in the absence of a recognizance for his appearance at the trial. The accused's sureties may surrender him to the court and be released from the recognizance in which event the accused is returned to jail unless a new recognizance is given. If the accused fails to appear in court his recognizance may be forfeited and the amount of the forfeiture applied to the payment of the judgment. The issue whether the accused is the putative father of the child of the complainant is tried to a jury and the preliminary examination is given in evidence by complainant. A preponderance of the evidence is sufficient to support a judgment of filiation. The accused may testify, but whether he shall be required to testify in the case is a matter of conflict in the decisions of the Courts of Appeals. A verdict of guilty or not guilty is rendered by the jury, and if accused is found guilty by the jury the court shall adjudge him to be the reputed father of the bastard child, if living, and shall order him to pay the complainant such sum of money as the court may find to be necessary for her support, maintenance and necessary expenses caused by the pregnancy and childbirth, together with costs of prosecution, and a reasonable weekly sum for the support and maintenance of the child up to 18 years of age. If the accused fails to pay or give security for the payment of the judgment, he shall be committed to jail until he complies with the order of the court, not as upon contempt of court, but to enforce the satisfaction of the...