State ex rel. Richeson v. Richeson
| Decision Date | 26 October 1905 |
| Docket Number | 5,626 |
| Citation | 75 N.E. 846,36 Ind.App. 373 |
| Parties | STATE, EX REL. RICHESON, v. RICHESON |
| Court | Indiana Appellate Court |
From Greene Circuit Court; Orion B. Harris, Judge.
Action by the State of Indiana, on the relation of Frances E Richeson, against Logan Richeson. From a judgment for less than the demand, plaintiff appeals.
Reversed.
Slinkard & Slinkard, for appellant.
Cavins & Henderson, for appellee.
This was an action to recover the penalty provided for a fraudulent marriage under the act of 1895 (Acts 1895, p. 167 § 1, § 7298a Burns 1901). This section reads as follows: "That any male person, who being at the time under or liable to a prosecution, either civil or criminal for seduction or bastardy, fraudulently enters into a marriage with the female who has been seduced or who is the mother of the bastard child, with the intention thereby to escape or avoid such prosecution or the consequences thereof, and who within two years after such marriage, without just cause, shall abandon his wife, or who shall, within such time, cruelly and inhumanly mistreat such wife, or fail and neglect to make reasonable provision for her support, shall be liable to an action for the recovery of a penalty which shall in no case be less than $ 200. Section two of that act (§ 7298b Burns 1901) provides that such action shall be instituted in the name of the State, on the relation of the wife. By section four of the act (§ 7298d Burns 1901) it is provided that the action may be commenced either before a justice of the peace or in the circuit court, and that the practice in such cases as to the execution of the bond, commitment upon failure to give bond, trial, judgment, etc., "and as to all other matters, shall be governed by the laws now in force governing prosecutions for bastardy."
Prior to the enactment of the statute under consideration, as now, if a putative father of an illegitimate child should marry its mother, it absolved him from liability in a prosecution for bastardy. If after such marriage he abandoned her, there was no remedy, but a double wrong without redress. In such case the marriage and subsequent abandonment did not right the original wrong, but added injury to disgrace, and the unfortunate woman was left remediless. It was to remedy this evil and create a new liability that prompted the enactment of this statute.
Now, a man who has seduced an innocent woman, and begotten her with an illegitimate child, while he may avoid a prosecution for bastardy or for criminal seduction by marrying his victim, yet if he does this and then abandons her without cause, within the statutory limit, the law steps in and says he must respond in damages, which shall accrue to the use and benefit of the wronged woman and unfortunate offspring of his lust. Thus, in such cases, the legislature has said in legal contemplation that the man who is guilty of these wrongs can not avoid Scylla without falling into Charybdis.
Here, the relatrix at the time of her seduction was but fourteen years of age--a mere child. She was begotten with an illegitimate child, and the appellee turned his back upon her. She appealed to the law for the only remedy she had, and in the name of the State prosecuted him for bastardy. Pending this prosecution he sought escape from its consequences by asking her to marry him. When she expressed doubt as to whether he would live with her and take care of her and her child he assured her that he would. She yielded to his entreaties and they were married. He lived with her for two weeks, and then, without cause, abandoned her and her child, and has never lived with them since, and has in no manner provided for their support. It is clearly manifest from all the facts and circumstances surrounding this case that he fraudulently induced her to marry him to avoid the prosecution for bastardy, and that he did not intend to live with her and support her and her child. The facts present a deplorable condition of moral obliquity on the part of the appellee. For all this wrong which he has committed against her there can be no adequate atonement in dollars and cents. There is no legal measure by which the extent of her wrongs can be determined. The scales of justice can not weigh her heartaches and sufferings, and there is no panacea that can alleviate her shame. The law has gone only so far as to provide an indemnity for the benefit of the wronged mother and wife and the unfortunate child.
The only question which counsel for appellant have discussed is that the award of damages as fixed by the court was erroneous in that it was too small. If the judgment is reviewable on appeal on account of the smallness of the amount of recovery, it must be because the question is properly presented by the motion for a new trial. The causes for which a new trial may be granted are specifically defined by statute, and unless the party aggrieved brings himself within the statute, he is without remedy. The statute specifies eight reasons for which a new trial may be granted upon proper application by the party applying therefor. § 568 Burns 1901, § 559 R. S. 1881. The fifth subdivision of that section provides that a new trial may be granted on account of "error in the assessment of the amount of recovery, whether too large or too small, where the action is upon a contract or for the injury or detention of property." Under the sixth subdivision of that section, a new trial may be awarded on the ground that the verdict or decision is not sustained by sufficient evidence, or is contrary to law. Of the eight reasons for which a new trial may be granted under the statute, the two just specified are the only ones which have any application here.
In appellant's motion for a new trial six reasons are assigned: ...
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