State ex rel. Love v. Jones

• Decision Date: 05 October 1953
• Citation: 128 N.E.2d 228,57 O.O. 161,50 A.L.R.2d 1022,98 Ohio App. 45
• Parties: , 50 A.L.R.2d 1022, 57 O.O. 161 The STATE ex rel. LOVE, Appellant, v. JONES, Appellee.
• Court: Ohio Court of Appeals

Page 45

98 Ohio App. 45

128 N.E.2d 228, 50 A.L.R.2d 1022, 57 O.O. 161

The STATE ex rel. LOVE, Appellant, v. JONES, Appellee.

Court of Appeals of Ohio, Hamilton County.

Oct. 5, 1953.

Syllabus by the Court.

1. The provisions of the General Code in force at the time a complaint in a bastardy action is made or filed are those the procedure in such action. Sections 26 and 26-1, General Code.

2. A bastardy proceeding is subject to the procedure provided in the Code of Civil Procedure, only so far as the provisions of such Code are appropriate to procedure under the provisions of the Bastardy Act contained in Section 12110 et seq., General Code.

3. The provisions of Sections 11304 and 11305, General Code, have no application to the filing of a complaint in bastardy under the provisions of Section 12110 et seq., General Code.

4. There is no provision either in the Code of Civil Procedure or the Bastardy Act designating the proper caption of a proceeding in bastardy.

5. The only obligation placed upon a complainant is to file an affidavit, testify at the trial, and accept what money the court may award.

6. The duty of furnishing the caption to a proceeding in bastardy rests upon the officers of the court in which the complaint is filed.

7. If there is error in selecting a proper caption, such error cannot be charged against the complainant.

8. In any event, a court will look beyond the nominal party, whose name appears formally upon the record and will treat as the real party her whose interests are involved in the litigation--one responsible for instituting an action and who actively participates in its prosecution.

9. Under the present law, the caption or title of an action or proceeding instituted by the filing of a complaint under the Bastardy Act and dealing with an award to the complainant should contain only the names of the complainant and accused.

10. The state of Ohio now has only a secondary interest in the outcome of such a proceeding, since the award is now to the complainant alone, and not as before for the support and maintenance of the child.

11. Both under the Code of Civil Procedure, Section 11247, General Code, and under the Bastardy Act, Section 12134, General Code, it is required that an action or proceeding under the Bastardy Act not be instituted or prosecuted by a minor.

Edward C. Benson, Cincinnati, for appellant.

Julian R. Forney, Cincinnati, for appellee.

ROSS, Judge.

This is an appeal on questions of law from a judgment of the Court of Common Pleas, Division of Domestic Relations, of Hamilton County. 111 N.E.2d 607.

The trial court caused this judgment to be entered:

'This cause coming on to be heard on the complaint of Ernestine Love and the evidence, on consideration whereof it appearing to the court that this action was brought in the name of the state of Ohio on the relation of Ernestine Love, and it further appearing that said Ernestine Love at the time of filing her complaint was a minor, aged 18 years; the court finds that a bastardy proceeding cannot be instituted or maintained in the name of the state of Ohio; and the court further finds that such bastardy proceeding cannot be instituted or maintained by a minor complainant.

'It is therefore ordered, adjudged and decreed that this cause be, and the same hereby is, dismissed without prejudice to the institution of a proper proceeding in accordance with law, at the costs of the plaintiff.

'To all of which said Ernestine Love, through her attorney, Edward C. Benson, excepts.'

The complaint was filed on June 23, 1950, in conformity to the provisions of Section 12110 et seq General Code, appearing in Part Third (Remedial) of the General Code, Title IV (Procedure in the Common Pleas Court) Division VIII, Quasi Criminal Actions, Chapter 2 (Bastardy). These are the applicable sections of the General Code in force at the time the complaint was filed, and are those that govern matters of procedure in the action herein considered. Sections 26 and 26-1, General Code.

The first question presented is whether the trial court was correct in adjudging 'that a bastardy proceeding cannot be instituted or maintained in the name of the state of Ohio.'

In State ex rel. Gill v. Volz, 156 Ohio St. 60, 100 N.E.2d 203, 205, it is held in the second paragraph of the syllabus:

'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.'

In the opinion, 156 Ohio St. on page 72, 100 N.E.2d on page 210, it is stated by Judge Hart:

'The view that, although bastardy proceedings possess the attributes of both civil and criminal proceedings, they are in purpose and effect essentially civil is based on a fair balance of the characteristics and the fact that bastardy proceedings have more civil than criminal attributes. Among these important characteristics are the facts that the courts agree that a preponderance of the evidence is sufficient to support a judgment of filiation rather than proof beyond a reasonable doubt; and that the accused can not plead double jeopardy in case of a reversal of a judgment against him for error.'

Again, 156 Ohio St. on page 73, 100 N.E.2d on page 210, it is stated:

'This court in view of the historical background of the legislation relating to this matter and in view of what appears to be the long settled practice of the inferior courts of this state, is constrained to hold that a bastardy proceeding is essentially a civil action and that the trial court committed no error in the instant case in accepting the verdict of guilty concurred in by nine members of the jury.'

To the same effect is paragraph two of the syllabus in Duncan v. State ex rel. Williams, 119 Ohio St. 453, 164 N.E. 527:

'A bastardy proceeding is subject to the procedure provided in the Code of Civil Procedure, and a judgment rendered in such a proceeding can only be reviewed if an error proceeding is filed within 70 days from the date of the entry of judgment in the court from which such error proceeding is prosecuted.'

The logical effect of these conclusions is that the provisions of the Code of Civil Procedure, so far as appropriate to an action under the bastardy statutes, are controlling. The Code of Civil Procedure being general in nature, special procedural provisions in the Bastardy Act will take precedence over general provisions in the Code of Civil Procedure.

The following sections of the Code of Civil Procedure require consideration in approaching a solution of the problem presented.

'An action is an ordinary proceeding in a court of justice, involving process, pleadings, and ending in a judgment or decree, by which a party prosecutes another for the redress of a legal wrong, enforcement of a legal right, or the punishment of a public offense.' Section 11237, General Code.

'There shall be but one form of action, to be known as a civil action. This requirement does not affect any substantive right or liability, legal or equitable.' Section 11238, General Code.

'In every civil action the party complaining shall be known as the plaintiff, and the adverse party as the defendant. The title of a cause shall not be changed in any of its stages.' Section 11239, General Code.

'An action must be prosecuted in the name of the real party in interest, except as provided in the next three succeeding sections. When a party asks that the he may recover by virtue of an assignment, the right of set-off, counterclaim, and defense, as allowed by law, shall not be impaired.' Section 11241, General Code.

'Every pleading must contain the name of the court and the county in which the action is brought, and the names of the parties, followed by the name of the pleading.' Section 11304, General Code.

'The first pleading shall be the petition by the plaintiff, which must contain:

'1. A statement of facts constituting a cause of action in ordinary and concise language:

'2. A demand for the relief to which the plaintiff claims to be entitled. If the recovery of money is demanded, the amount shall be stated; and if interest is claimed, the time for which interest is to be computed shall be stated.' Section 11305, General

The sections of the Code of Civil Procedure quoted applying to the initiation of a civil action, such as what the pleading or petition shall contain are obviously inappropriate to the commencing of a proceeding under the Bastardy Act. It is instituted when an unmarried woman 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 her child. See Section 12110, General Code; 5 Ohio Jurisprudence 550, Bastardy, Section 8 (forms for institution of proceedings); Baldwin's Ohio Civil Practice Manual, Form No. 453 et seq. This affidavit is not a petition, and there is no requirement upon the complainant to employ any form of title to her affidavit. A warrant is issued and the person accused is arrested and incarcerated in the absence of bail. The justice of the peace, if the complaint is filed before him, conducts a hearing and files with the clerk of the Common Pleas Court a certified copy of his proceedings. Section 12111 to Section 12117, General Code. Certainly, up to this time, there is no obligation on the complainant to entitle her proceeding or to designate parties in any caption. It is to be presumed that the justice will in some way designate the proceeding before him. Any...