State ex rel. Johnson v. Strevey

• Decision Date: 09 December 1933
• Docket Number: 31346.
• Citation: 27 P.2d 253,138 Kan. 646
• Parties: STATE ex rel. JOHNSON v. STREVEY.
• Court: Kansas Supreme Court

27 P.2d 253

138 Kan. 646

STATE ex rel. JOHNSON v. STREVEY.

No. 31346.

Supreme Court of Kansas

December 9, 1933

Syllabus by the Court.

Motion to set aside complaint in bastardy proceeding on ground verification thereof was by relatrix' attorney, came too late where defendant had given bond, obtained repeated continuances, and filed answer.

Any error committed in admission of testimony for plaintiff held cured where defendant in his own behalf gave testimony on same subject.

That conception, according to testimony of relatrix, preceded birth of normally developed child by only 254 days, held not to require setting aside determination of child's paternity in bastardy proceedings on ground of insufficient evidence (Rev. St. 1923, 62-- 2301 et seq.).

Overruling defendant's motion for new trial sought in bastardy proceedings on ground of newly discovered evidence raising suspicion of relatrix' relations with other men held not abuse of discretion.

1.In a bastardy proceeding, where a warrant had been issued on a complaint and defendant was arrested pursuant thereto, and where he had given bond for his appearance and had requested and obtained repeated continuances of the cause, and where he had filed an answer denying the allegations of the complaint it was not error to overrule a motion filed thereafter attacking the sufficiency of the complaint on the ground that it was verified before a notary public who was also attorney for the relatrix.

2.Where testimony for plaintiff of challenged competency was followed by the introduction of testimony on the same subject by defendant in his own behalf, whatever error may have inhered in the admission of evidence was thereby cured following State v. Furney,41 Kan. 115, 21 P. 21313 Am.St.Rep. 262.

3.The fact that the illegitimate child was normally developed at birth, which occurred in 254 days after the date it was begotten according to the evidence of the relatrix, does not require the verdict and judgment to be set aside on account of insufficient evidence for their support.

4.Error on the overruling of motion for a new trial based on newly discovered evidence considered and not sustained.

Appeal from District Court, Decatur County; Edward E. Kite, Judge.

Bastardy proceedings by the State, on the relation of Maxine Johnson against Guy R. Strevey.From an adverse judgment, defendant appeals.

J. P. Noble, of Oberlin, for appellant.

J. F. Peters, W. S. Langmade, and Wallace T. Wolfe, all of Oberlin, for appellee.

DAWSON Justice.

This was a prosecution under the statute(R. S. 62--2301 et seq.) to compel the defendant, as alleged father of the illegitimate child of the relatrix, to contribute to its support.

The jury's verdict was that defendant was the father of the child; he was adjudged to pay into court the sum of $15 every three months for its maintenance and education until he shall have paid an aggregate sum of $1,000; and he was also required to give security for such payment, and in default thereof he should be committed to jail until such security is given, but such imprisonment should not in any event exceed the period of one year.

Defendant appeals, contending first that the trial court erred in overruling his motion to set aside and strike out the complaint under which this bastardy proceeding was begun for the reason that the notary public before whom the complaint was signed and sworn to by the relatrix was her attorney in the case.

The record shows that the complaint was filed with the justice of the peace on March 5, 1932, and a warrant was issued thereon.Defendant was arrested on April 5, 1932, and gave bond to appear on April 12, 1932.On that date defendant appeared in the justice court, and a hearing on the complaint was had pursuant to the statute.The testimony of the mother was reduced to writing and signed and sworn to by her before the justice of the peace and forwarded to the district court with the other papers in the case.Defendant gave the statutory recognizance for his appearance at the next term of the district court.

Thereafter, on October 12, 1932, defendant filed in the district court a motion for a continuance, the grounds therefor being that the cause had not been certified to the district court by the justice until October 10, 1932, in consequence of which he and his counsel were not informed that the cause would be tried at that term, and that a material witness in his behalf was a resident of Nebraska, and that neither her presence at the trial nor her deposition could be procured unless a continuance was granted.

On November 1, 1932, defendant filed an answer to the complaint, denying that he was the father of the child as alleged by the prosecutrix.Not until all these matters had transpired nor until February 27, 1933, did defendant file his motion questioning the sufficiency of the complaint on account of its being sworn to before complainant's attorney.

One of the primary rules of pleading is that all dilatory pleas must be interposed promptly, to the end that the cause be neither stayed nor delayed on account of mere procedural informalities.Cooley's Blackstone (3d Ed.), book III, 301-303;Phillips on Code Pleading, § 59;49 C. J. 223 et seq.While bastardy proceedings are conducted under statutory procedure prescribed therefor (State ex rel. v. Murphy,120 Kan. 350, 243 P. 288), that procedure has some aspects of both civil and criminal actions (State v. Baker,65 Kan. 117, 69 P. 170).In a civil case where verification of a pleading is required to raise an issue, the want of such verification is waived if the adversary pleads over without first directing the court's attention to its technical insufficiency.Emery v. Bennett,97 Kan. 490, 155 P. 1075, Ann.Cas. 1918D, 437.

The procedure in bastardy cases is analogous to that of the criminal code, providing, as it does, for a complaint, warrant, arrest, preliminary hearing, recognizance for appearance in the district court, and possible imprisonment to enforce defendant's compliance with the judgment imposed on him.In an ordinary criminal case, it is immaterial that a complaint may have been defective in point of verification when a warrant has been issued thereon and defendant is arrested under its authority and when he gives bail for his appearance pursuant thereto.State v. Miller,87 Kan. 454, 124 P. 361;State v. Carter,122 Kan. 524, 253 P. 551.

From these analogous rules of both civil and criminal procedure, the court holds that defendant's belated motion to set aside and strike out the complaint was properly denied.

The next error urged relates to the admission of testimony given by the father of the relatrix touching conversations he had with defendant relating to the pregnancy of the girl.The argument now is that defendant had a right to negotiate a settlement and that it was error to...