State ex rel. Hoerres v. Wilkoff, 32737

Decision Date26 March 1952
Docket NumberNo. 32737,32737
Citation157 Ohio St. 286,105 N.E.2d 39
Parties, 47 O.O. 174 STATE ex rel. HOERRES v. WILKOFF.
CourtOhio Supreme Court

Syllabus by the Court.

Bastardy proceedings are governed wholly by statute, and under the provisions of Section 8006-1, General Code, a woman, to make a valid complaint in bastardy, must have been unmarried at the time of the birth of the alleged bastard child.

Involved in the instant cause is the right of Gertrude L. Hoerres, the appellee herein, to maintain a bastardy proceeding against Ralph M. Wilkoff, the appellant herein. In sustaining the motion of Wilkoff to strike from the files the complaint and the transcript of the proceedings before a justice of the peace, the Court of Common Pleas decided she did not possess such right. In reversing the judgment below on an appeal on questions of law, the Court of Appeals held otherwise.

Allowance of a motion to require the Court of Appeals to certify its record brings the controversy before this court on its merits.

Complainant stated in her examination before the justice on June 3, 1949, that she was delivered of a bastard child, a girl, on August 3, 1944; that such child was begotten on or about October 31, 1943; that at the time the child was conceived and delivered she was married to Lawrence Henry Hoerres; and that Hoerres divorced her on April 26, 1949.

Henderson & Covington, Youngstown, for appellant.

K. H. Powell and Joseph N. Higley, Jr., Youngstown, for appellee.

ZIMMERMAN, Judge.

The decision in this case turns on the proper interpretation of Section 8006-1, General Code, which is in substantially the same language as former Section 12110, General Code, applicable in this case, and which reads:

'When an unmarried woman, who has been delivered of, or is pregnant with, a bastard child, makes a complaint in writing, under oath, before a justice of the peace or in juvenile court charging a person with being the father of such child, the judge or justice shall issue his warrant, directed to any sheriff, police officer, or constable commanding him to pursue and arrest such accused person in any county and bring him forthwith before such judge or justice to answer such complaint.' (Italics supplied.)

Since a bastardy proceeding is wholly statutory and is somewhat penal in nature, statutes relating to that subject should not be enlarged by implication beyond the words actually used. When a child is conceived and born during the existence of a lawful...

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6 cases
  • Franklin v. Julian
    • United States
    • Ohio Supreme Court
    • 7 Junio 1972
    ...its mother regardless of the marital status of the mother at delivery. (Haworth v. Gill, 30 Ohio St. 627, and State, ex rel. Hoerres, v. Wilkoff, 157 Ohio St. 286, 105 N.E.2d 39, 2. Proceedings upon a complaint filed by a married woman alleging that she has delivered a bastard child by a ma......
  • State v. Carter
    • United States
    • Ohio Supreme Court
    • 26 Junio 1963
    ...evidence that the child is not attributable to her former husband. * * *' As stated by Zimmerman, J., in State, ex rel. Hoerres, v. Wilkoff (1952), 157 Ohio St. 286, 287, 105 N.E.2d 39: 'The bastardizing of innocent children is a serious matter of public concern and it was certainly not the......
  • Weaver v. Chandler
    • United States
    • Ohio Court of Appeals
    • 21 Marzo 1972
    ...but not at the time of birth. See State ex rel. Walker v. Clark (1944), 144 Ohio St. 305, 58 N.E.2d 773, and State ex rel. Hoerres v. Wilkoff (1952), 157 Ohio St. 286, 105 N.E.2d 39. It has also been held that the marriage of the complainant subsequent to the filing of the complaint does no......
  • New York Cent. R. Co. v. Public Utilities Commission, 32844
    • United States
    • Ohio Supreme Court
    • 26 Marzo 1952
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