State ex rel. Peters v. McBride

• Decision Date: 23 April 1902
• Citation: 64 Neb. 547,90 N.W. 209
• Parties: STATE EX REL. PETERS v. MCBRIDE.
• Court: Nebraska Supreme Court

64 Neb. 547

90 N.W. 209

STATE EX REL. PETERS

v.MCBRIDE.

Supreme Court of Nebraska.

April 23, 1902.

Syllabus by the Court.

The complainant has no authority to compromise a judgment rendered in bastardy proceedings.

Commissioners' opinion. Department No. 3. Error to district court, Cass county; Jessen, Judge.

Application by the state, on the relation of George Peters, for a writ of habeas corpus directed to John D. McBride. Judgment for defendant, and relator brings error. Affirmed.Matthew Gering, for relator.

A. J. Graves and C. S. Polk, for respondent.

ALBERT, C.

In 1897 George Peters was the defendant in bastardy proceedings pending in the district court of Cass county, wherein he was charged with being the father of the illegitimate child of one Minnie Killian. On the plea of guilty, it was adjudged that he stand charged with the support of the child in the sum of $1,300, to be paid in installments covering a period of 12 years, the bond to be fixed at $2,500. From such judgment he prosecuted error to this court, where the judgment was affirmed, November 20, 1901. See Peters v. Killian, 87 N. W. 1049. A mandate issued, and judgment was rendered thereon in the district court on the 7th day of January, 1902. A capias issued, directing the sheriff to arrest the said Peters and confine him in jail until he should comply with the judgment for the maintenance of the child. Under this writ, Peters was arrested by John D. McBride, sheriff of said county, on the 26th day of February, 1902. On the 3d day of March, thereafter, he entered into a bond in favor of the commissioners of Cass county in the sum of $2,500, conditioned to hold said county harmless, which was approved by the clerk of the district court, and paid costs of the proceedings. On the following day he demanded his release, which was refused; whereupon he made application to the district court for a writ of habeas corpus. In addition to the giving of the bond and the payment of the costs, it is alleged in the application that during the pendency of the proceedings in error, hereinbefore mentioned, the said Minnie Killian, in consideration of $275, to be paid by him, the relator, and his agreement to pay her attorney fees in the sum of $100, had released and discharged the said judgment of record. The sheriff made return, and the issues were made up and a trial had to the court. The writ was denied, and the relator brings error.

The question that meets us at the threshold is whether the complainant in bastardy proceedings has authority to release a judgment rendered therein. In Peters v. Killian, 87 N. W. 1049, it was held that a settlement between the parents of an illegitimate child, in order to be operative as a stay or termination of bastardy proceedings, must be of such nature, and made and attested in such manner, as the act prescribed. Our statute regulating proceedings of this character is borrowed from the state of Ohio. The supreme court of that state, in Perkins v. Mobley, 4 Ohio St. 669, in which the statute in question was before the court for construction, says: “At one point in the proceeding a settlement may be made. If, when the accused is brought before the justice, he pays or secures to be paid to the complainant such sum of money or property as she may agree to receive in full satisfaction, and shall further give bond that the child shall not become a township charge upon any township in this state, the justice is authorized to discharge him from custody on his paying the costs. But, to prevent...